Ombudsman's casebook

A monthly column of examples from the files of the Legal Services OmbudsmanLast summer saw the publication of the Office for the Supervision of Solicitor's (OSS) booklet, 'Handling Complaints Effectively', which was circulated to all practising solicitors encouraging them to adopt best practice in their responses to complaints.And more recently, the Law Society's compliance board has announced a clampdown on solicitors who fail to comply with rule 15 of the Solicitors' Practice Rules 1990.

In future, solicitors who fail to introduce or operate complaints-handling procedures may face the prospect of being 'fast-tracked' to the Solicitors Disciplinary Tribunal (SDT) (see [2001] Gazette, 27 September, 1).These developments are welcome.

But, as the following recent cases show, there is still room for improvement at the OSS in the way it responds to rule 15 breakdowns.Service faultsMs E instructed solicitors to deal with a house purchase.

After completion, Ms E discovered - following a visit from debt collectors - that, although she had paid an apportioned service charge to the seller on completion, there were still arrears and costs of 400 due to the landlord.

Ms E complained to her solicitors, who in turn blamed the seller's solicitors for the unpaid charges.

Ms E then complained to the OSS.Almost 12 months later an adjudicator at the OSS decided that the service provided by the solicitors had been inadequate and that the solicitors had failed to respond to Ms E's complaint under rule 15.

He directed the solicitors to pay 220 compensation for inconvenience and to indemnify Ms E for the unpaid service charge.

Following an appeal by the solicitors, the OSS appeals committee decided that it was more or less satisfied with the compensation award, but it rejected both the indemnity and the finding that there had been a failure to operate rule 15.

Ms E complained to the ombudsman about the appeals committee's decision.The ombudsman noted that, under the solicitors' complaints-handling procedure, a complaint should be investigated promptly and that a client be given an explanation of the investigation as well as a written response to it.

In this case, the solicitors were content simply to blame the seller's solicitors for the situation and then sit back and let the OSS sort things out.

The ombudsman expressed her disappointment at the solicitors' response to Ms E's complaint as well as the OSS decision that this was acceptable practice.

She recommended that the OSS reconsider this aspect of Ms E's complaint.Missed opportunityMr C was convicted of harassment and sentenced to a term of imprisonment.

His main concern was that his solicitor had not presented medical evidence at trial or subsequent appeal and had not given Mr C a reason for this.

There was some confusion about whether Mr C had complained directly to the solicitor, and so, when the OSS was contacted by Mr C, it referred the complaint back to the solicitors to be dealt with under their internal complaints-handling arrangements.

The solicitors responded promptly to the OSS request saying that they would be happy to look into Mr C's complaint if the OSS would be good enough to send them details.

The OSS did not reply.

18 months later the OSS allocated a caseworker to the case and the solicitors subsequently responded to Mr C's concerns.

Following the OSS decision that the solicitors' service had been adequate, Mr C complained to the ombudsman.While the ombudsman was satisfied with the OSS decision on Mr C's substantive complaint, she was concerned that, in failing to let the solicitors have details of Mr C's complaint, the OSS squandered an opportunity to use the solicitors' own complaints-handling procedure to resolve, or at least investigate, Mr C's complaint early on.

As it turned out, it took the OSS two years to deal with the complaint.

The ombudsman recommended that the OSS pay Mr C 500 for the significant inconvenience caused to him by the way it handled his complaint.The Law Society's much publicised clampdown on rule 15 compliance in the case of serious breaches is to be welcomed.

However, from the ombudsman's perspective, the OSS will need to adopt a firmer and more consistent approach to rule 15 breaches, before this new weapon is unleashed.