The Legal Ombudsman Cometh Article appeared in the autumn 2010 edition of the ACS Publication Switched On Authors: Roy Slocombe and Deborah O Riordan Quality Assurance Consultants QBE Insurance (Europe) Limited 1
Contents Background...1 Complaints Handling...1 Preparatory Action...3 Financial and insurance implications...3 Summary...4
Background On 6 October 2010 a seismic shift took place in the handling of complaints about the provision of legal services. The existing complaints arrangements operated by each of the legal regulatory bodies for solicitors, barristers, legal executives etc., were all replaced by the independent Office for Legal Complaints (OLC), otherwise known as the Legal Ombudsman. All complaints made on or after 6 October will be handled by the Legal Ombudsman. Existing complaints in the course of investigation will be followed through to their completion by the existing bodies which will be closed once their work has been completed. Established as an independent body under the Legal Services Act 2007, the OLC will operate from new offices in Birmingham and be funded proportionately by all of the legal regulatory bodies. It will be headed by the Legal Ombudsman, Adam Sampson, who is not a lawyer and was previously Chief Executive of Shelter the homeless charity, Chief Executive of RAPt, a drugs charity, and before that an Assistant Prisons Ombudsman at the Home Office. He has already established and trained a staff team at the Birmingham offices with an expectation that total staff numbers will rise to around 350, with annual running costs of around 20 million per year. If that sounds high, it compares favourably with current costs for the Legal Complaints Service of around 30 million a year for dealing purely with complaints against solicitors. The OLC is being resourced to handle over 100,000 telephone/initial enquiries per year, of which they expect 15,000 to 20,000 to become actual complaints. They will though only consider complaints once the complainant has exhausted the internal complaints system of the firm about which they are complaining. This is, however, subject to the complaint being dealt with within a maximum of eight weeks from being made. Complaints Handling Complaints can only be made by individuals, small businesses, charities, clubs, societies, associations and trusts, with an ability for attorneys, personal representatives or residuary beneficiaries to continue a complaint where the complainant is no longer able to pursue it through incapacity or death. The rules do not allow for complainants to have a second bite at the cherry by referring to the Legal Ombudsman a complaint that has already been through the existing complaints procedures of bodies such as the Legal Complaints Service or the Bar Standards Board. The Ombudsman has a stated aim of attempting to resolve complaints at the earliest stage possible and this will normally lead to an attempt to resolve the complaint informally. If this is not successful, then he will investigate the complaint more fully ensuring both parties have a chance to make representations. The Ombudsman intends to use a combination of a non legal process, the rejection of a rules-based approach, and narrative rather than binary judgements; an inquisitorial process, where he may go back to the lawyer or to the complainant and ask for information to enable him to weigh up the facts and recommend a solution. 1
The Legal Ombudsman will then provide both parties with a provisional decision and both parties have a chance to respond within a fixed deadline. If neither party indicates disagreement with the decision the Ombudsman will then treat the complaint as resolved. If the provisional decision is not agreed the Ombudsman will make a final decision based on what is fair and reasonable in all the circumstances of the case. This will take into account, amongst other considerations: the decision a court might make; the relevant Code of Conduct rules; and good practice. If the complainant then accepts the determination it will become final and binding on all parties. This removes the ability of either party to start or continue legal proceedings in respect of the complaint. If the complainant rejects the determination, then normal legal rights and remedies continue to be available to both parties. The Ombudsman has indicated that the overriding aim of the process is to ensure that clients have received the level of service that they might reasonably expect to have received and if they have not, then to take action as far as possible to restore the client to the position that they expected to be in. When the Ombudsman finds in favour of a complainant he may require the relevant legal adviser to do any of the following: apologise; pay compensation of a specified amount for loss suffered; pay interest on that compensation from a specified time; pay compensation of a specified amount for inconvenience and distress caused; ensure (and pay for) putting right any specified error, omission or other deficiency; take (and pay for) any specified action in the interests of the complainant; pay a specified amount for costs that the complainant incurred in pursuing the complaint; and/or limit fees to a specified amount. There is a limit of 30,000 on the total value that can be awarded in respect of compensation, the cost of putting right any errors, and the cost of any specified action carried out in the interests of the complainant. This limit does not apply to awards relating to interest on compensation, costs incurred by the complainant in pursuing the complaint, the limitation of fees, and interest on fees to be refunded. The Ombudsman has indicated that the primary evidence that he will seek is the complaints file that has been created and kept by the firm or individual being complained about. This will be reviewed to identify whether or not the level of service offered was that which the client could reasonably expect. Unlike the present arrangements, there will not be a detailed assessment as to whether or not the firm or individual has fully complied with the fine details of the Solicitors Code of Conduct or other regulatory rules. The Legal Ombudsman is on record as saying: You can follow the rules and provide a poor service. You can drive a horse and cart through the rules but provide fantastic service. It is the service provided that matters. 2
Preparatory Action Firms will need to ensure that their complaints handling procedures are clear and fully understood by all staff, and that those responsible for handling complaints are aware of the sea change in approach represented by the introduction of the Legal Ombudsman and take this into account when dealing with client complaints. It is particularly important to ensure that matters are progressed in a timely manner (remembering the eight week deadline) and that a comprehensive complaints file is kept as this will be the key evidence upon which the Legal Ombudsman will in many cases make his decision, and in all cases, form the first impression of the way in which a complaint has been handled before it reaches the OLC. There are a number of actions that firms can take, in particular: ensure appropriate references to complaints are in client care letters and terms of business, replacing the present references to the Legal Complaints Service with the Office for Legal Complaints/Legal Ombudsman; study the Guide to Good Complaint Handling available at: www.legalombudsman.org.uk. update all complaint handling policies, procedures, documents and other references to comply with Ombudsman requirements; train partners and staff on the new regime plus how to recognise a complaint and deal with it effectively; obtain copies of Making a Complaint from the Legal Ombudsman and include a copy in your initial response to any complaints. Financial and insurance implications As well as the substantial figures that the Ombudsman may award - now up to 30,000, there is also a case fee that is potentially payable to the OLC for each complaint made. Fees will not be charged if a complaint is outside of the Legal Ombudsman jurisdiction or is dismissed or discontinued. In other cases a fee of 400 is potentially payable. The good news is that there will be no charge for the first two potentially chargeable cases brought against the firm. Thereafter, unless a complaint was withdrawn or abandoned, or resolved or determined in favour of the firm and the Ombudsman was satisfied that the firm took all reasonable steps to try and resolve the complaint under their own complaints procedure, a fee will be payable. The introduction of the Legal Ombudsman regime has also provided an opportunity for the Minimum Terms and Conditions to be updated in this area in order to clarify some ambiguities surrounding inadequate professional service awards. Clause 1.8 has been amended to reflect the compensatory awards a direction that the solicitor or firm pays compensation to the complainant as directed by the Legal Ombudsman for any resultant loss, inconvenience or distress suffered by the complainant. It also covers the payment of interest on such awards. Clause 1.8 now though makes it clear that insurers will have no liability in respect of any determination by the Legal Ombudsman for the refund of any fees paid to the solicitor or firm. 3
Summary This is an extremely significant change to the previous rules and procedures under which firms have been used to working. Those who have put sound complaint handling procedures in place should have nothing to fear, whilst those who have not given complaints the priority they deserve may well find an unnecessary and potentially unpleasant increase in their costs of operation. Roy Slocombe and Deborah O Riordan, Risk & Quality Consultants QBE Insurance (Europe) Ltd 4