I am unpopular again. Not that I fool myself that I have ever been particularly popular – among the legal profession, that is. And I am used to being the object of intense dislike on the part of some complainants, usually those whose conspiracy theories I have refused to endorse and who have therefore condemned me to the ranks of those plotting against them.
No – what has changed is not my reputation outside the office but my popularity inside it. And not without reason: you cannot cut 10-15% of your staff without it somewhat denting your image as a good, caring operator. Moreover, given the furore over pay-offs in the public sector (I write this in the week when the row between senior BBC staff has been playing out in excruciating detail), there is little one can do at somewhere like the Legal Ombudsman to soften the financial blow.
Some of the cuts have been long planned. Like any start-up organisation, once you reach a certain level of stability, you are able to relinquish some of those roles you needed at the start. Some too were the direct result of the delay in turning on our power to take complaints about claims management companies, a bureaucratic delay that grows more frustrating by the day despite having our minister’s backing. But, for the main part, the cuts were the result of one simple fact: we have not been receiving as many complaints as we had expected and planned for.
It is not as if we had not done our research. Before we opened our doors, we spent many long weeks crunching the numbers, interrogating the likes of the Legal Complaints Service (LCS) and Bar Standards Board about the levels of demand they were used to experiencing, and visiting other ombudsman schemes to get a general picture of how complaint patterns were changing. Based on that information, we planned on completing some 12,000-14,000 investigations a year, about the same number that the LCS was taking on.
But even then, we were cautious. Rather than recruiting our entire quota of staff (we had planned for up to 300, some two-thirds of the size of our predecessor bodies), we capped our recruitment at 260, comfortably under-spending our planned budget of £19.9m. And we were wise to do so. In the event, demand has stayed stubbornly around the 7,500-8,000 level. So over time, we have gradually pushed our staffing levels and budgets downwards. This year we will under-spend again.
So what is going on? Some of it is simply down to the state of the economy. Conveyancing, which used to generate 35% of the LCS’s work, only accounts for 17% of ours – hardly a surprise given the state of the housing market. Additionally, legal aid changes, the Jackson reforms, the level of competition from unregulated providers – all of these will suppress demand.
But there should also be upward pressures. As money gets tighter for lawyers and customers alike, there is likely to be more room for conflict about what has been provided and how much it has cost. It is noticeable that most other ombudsman schemes have been experiencing an increase in the number of complaints. The Financial Ombudsman Service has quadrupled in size since 2009. While the payment protection insurance scandal has had a significant impact, it is strange that we are not seeing a similar effect.
We think that there are two reasons; one positive, one less so. On the positive side, there is some evidence that many law firms are handling complaints better, reducing the need for dissatisfied customers to bring their cases to us. When we make follow-up calls to premature complainants whom we have directed back to their lawyer to make a first-tier complaint, we are often told how well the lawyer responded to their dissatisfaction. Research indicates that the main reason consumers do not complain is fear of the reaction, even though the evidence shows that this fear can be misplaced.
But that is only half the story. One of the other pieces of research we regularly undertake is to ask complainants how they heard of the Legal Ombudsman. Shockingly, only 27% of respondents say that they were told of our existence by their lawyer. Since it is a regulatory obligation for solicitors to inform their customers of their right to complain to us, both at the start of any engagement and again in response to any complaint raised with them, this is a dreadful statistic. I know that people rarely read all the gobbledygook at the end of client-care letters, let alone remember it. But the number of letters we see that still give the name of the Legal Complaints Service (or in some cases, the previous names it went by) rather than ours leads me to doubt that it is all the customers’ fault.
If that is an easy mistake to make, failing to tell people who have raised a complaint that they have the right to appeal to the ombudsman is more difficult to forgive. Of course, I understand that anything which looks like an encouragement for customers to complain to my office is not particularly attractive, especially given the publication of ombudsman decisions and case fee structures. But the guarantee of standards and access to redress is something which distinguishes lawyers from the unregulated sector; giving consumers trust is good business. And sometimes, there are highly charged clients who are taking up so much billable time with their complaints that it makes good economic sense to tell them to take it up with the ombudsman.
But the bottom line is that failing to tell customers about the Legal Ombudsman is a clear breach of regulatory obligations. And it risks an automatic case fee if your customer does complain to the ombudsman, whether or not the underlying complaint has any justification. The following cases show why taking complaints seriously and signposting as part of that process makes sense.
Mr A instructed a firm to represent him in a housing dispute.
Mr A was concerned that the firm was not progressing his case since he had not heard any news.
Mr A raised this issue with the firm but they failed to respond. After waiting a while, Mr A decided he was not going to get anywhere with the firm, so he searched the internet for help. Eventually, he found the Legal Ombudsman and brought his complaint to us.
An investigator found that the real issue in this case seemed to be that the firm had not responded to Mr A’s complaint. In actual fact, the firm had followed his instructions and undertaken its duties. It had simply failed to let Mr A know that this was the case while not making Mr A aware of the Legal Ombudsman in its client-care letter.
When we asked Mr A what he wanted from the firm he asked for a clear schedule of what would be happening next. He also wanted an estimate of the amount that he might be likely to receive from his claim.
We recommended that the firm do this and that it apologise, informally resolving the issue. Mr A was happy with the recommendation and the firmly duly obliged. However, the firm was charged a case fee for not dealing with the complaint earlier and for failing to signpost Mr A to us.
Mr B instructed a lawyer to help him register his ownership of some land.
Soon after instructing the lawyer, Mr B asked for updates on what work had been completed and any costs that had been built up as a result. It took a long time for the firm to get back to Mr B and when an update finally did come through, the information was unclear. Mr B felt that the some of the costs were incorrect under the payment terms he had agreed with the lawyer.
He raised the issue with his lawyer directly but did not receive a response. Mr B was becoming increasingly annoyed with the lawyer’s lacklustre approach but he was unsure about what he could do about it. He sent further contacts to the lawyer with no success until finally a friend recommended the Legal Ombudsman.
When we investigated we found that the lawyer had in fact completed the work he was instructed to do and that he had adhered to the payment terms. Consequently, we found no merit in the complaints about this part of his service. However, the lawyer did fail to provide an adequate response to Mr B, and had failed to tell Mr B about the Legal Ombudsman.
An investigator recommended that the firm should apologise to Mr B and the lawyer was charged a case fee for not adequately handling the complaint.
We now offer the benefit of our experience in resolving complaints through our complaint-handling courses. Available to all legal professionals, they are continuous professional development-accredited by the Solicitors Regulation Authority, and help attendees to clarify the process and principles followed by the ombudsman when it investigates complaints. They also look at implications for best practice and internal complaint-handling procedures.
Additionally, we have made a signposting package available on our website to help lawyers direct clients to us if they cannot resolve a dispute internally.
Adam Sampson is legal ombudsman