Make reasonable adjustments and you won’t go far wrong.
It strikes me that, for all our media work, news of the latest developments at the Legal Ombudsman often reaches the ears of lawyers via less formal routes than official channels – gossip over coffee or in the pub or, increasingly, via the internet. That is why we at the ombudsman keep a close eye on what is said about us in the legal chatrooms and Twitter feeds.
Most of what goes on there is the normal warp and woof of conversation – ‘the ombudsman is fair’, ‘the ombudsman is unfair’, ‘who is the bloody ombudsman anyway?’. But just occasionally, we get an indication that there is something happening, that there is a consistent view of what we are doing. That is useful feedback about what we need to concentrate on.
One such topic is complaints from prospective clients or third parties. The social media chatter echoes the questioning I have had in some of my recent speeches: lawyers are worried that the recent changes to our Scheme Rules now expose them to a hugely expanded risk of complaints from non-clients. So let me use this column to bring some clarity.
The Legal Ombudsman’s jurisdiction already included some individuals whom lawyers do not traditionally class as ‘clients’. The Legal Services Act says we can take complaints from people ‘who have received a service’ rather than just clients; beneficiaries, for example, fall within the scope of the act. What the Scheme Rules revision did, however, was to widen this to include two other groups: people who had unreasonably been denied a service, and people who had unreasonably been offered a service.
Now, it is important to recognise that these extensions are very limited in their scope. As well as taking on powers to look at such complaints, we also took on increased powers to refuse to investigate cases where we considered it would be wrong to do so. Before we even start an investigation under these powers, the complainant would have to show two things: first that the refusal of service (or offer of service) was unreasonable; and second that they suffered a loss. Unless they can come forward with clear evidence of both, we will refuse to take the case on.
How does this work in practice? Let me give some examples:
- Denial of service A – client goes to lawyer who turns them away for perfectly good business reason (they don’t do that sort of work; they’re too busy; the client is unwilling to put up money up front).
- Denial of service B – lawyer promises to look into case but does nothing and client goes to second lawyer to take the case on without suffering any detriment. Both of these cases are about denial of service. But exactly the same tests are used where we are talking about the offering of service.
- Offer of service C – after the death of her mother, the executor was offered the services of the firm which wrote the will to assist in the administration. She refused and then complained to us. The offer was not unreasonable in the circumstances, had been sensitively made and, once she had refused, the firm did not persist with their offer.
What these tests mean, therefore, is that firms should continue to make their normal business decisions about the sorts of case they will seek and take on. However, they need to be careful when they are approaching potential new clients about what those people are thinking and feeling.
Complaints from non-clients are clearly going to be very rare, then. But we have seen one or two since the change was made back in April. Perhaps the most interesting one was this:
Mr A wanted to use a firm’s services to help him write his will. After being tipped off about its services by a friend, he contacted a reputable high street firm to see if it could help.
Mr A was shocked, however, when the firm said it wouldn’t act on his behalf. Mr A was blind and the firm had refused to provide him a service because they said he wouldn’t be able to read their terms and conditions. What was even more surprising was that this was consistent with a blanket policy implemented by the firm excluding all blind people from using its services.
Mr A complained to no avail. He then brought his complaint to the Legal Ombudsman. We began an investigation, at which point the firm then offered to make a home visit to Mr A. However, Mr A was so insulted by the initial rejection that he refused.
We agreed that the firm had discriminated against Mr A and ordered the firm to pay him £500 compensation for the distress and inconvenience its actions had caused.
Cases like that, of course, bring us into the perhaps more interesting space of LeO’s approach to dealing with complaints about the way that firms have responded to the individual needs of their customers. Take these two examples:
Lost in translation
Mr B instructed a law firm to help him build a defence during criminal proceedings for an alleged assault. Mr B’s first language was Urdu and his English was very limited. Despite knowing this, the firm agreed to take on his case.
The firm began working with Mr B to build his case, and he supplied it with witness statements and other forms of written evidence. The firm then confirmed his first day in court where he would stand trial.
Unfortunately, despite being fully aware of Mr B’s difficulty speaking English, the firm failed to arrange for an interpreter to be at the hearing so that Mr B could properly respond to questions from the prosecution. As a result of this, the hearing was adjourned and the judge insisted that when Mr B returned he should have an interpreter with him.
When Mr B came back to court his firm had still not sourced an interpreter and the judge was unwilling to adjourn the case again. Mr B stood trial without an interpreter and was subsequently convicted. As a result, he also lost access to his son.
Mr B complained to the firm without any success before bringing it to the ombudsman. When we investigated we found that the firm had provided a very poor service. Despite claims by the firm that it had attempted to contact 15 different interpreters, we could see no evidence that this was the case. We felt that given the firm was obviously not in a position to adequately represent Mr B, it should have considered whether it was reasonable to act on his behalf.
Whether the outcome of the case would have been different had Mr B had an interpreter was unclear. However, we decided that he was denied the opportunity to a fair hearing as a result of the poor service.
We decided that the firm should pay Mr B £1,000 for the upset and inconvenience its service failings had caused.
Hard to comprehend
Mr C was referred to a law firm by a claims management company which said it would act on a ‘no win, no fee’ basis (a CFA) in respect of a litigation claim against a former employer.
Mr C was originally approached by a salesman from an industrial diseases claims firm. The representative suggested that Mr C may have damaged his ear during his years spent working in a factory. Despite not being aware of any such problems with his ears, Mr C agreed to have his ears tested as he felt pressured into pursuing the claim.
Mr C was then referred to a law firm which agreed to work for him under a CFA (conditional fee agreement).
A short while later Mr C decided to withdraw his claim and told the firm he didn’t want it to do any more work. The firm then invoiced him for £1,200, stating that he had broken the terms of their agreement by not seeing the case through to the end.
Mr C complained to us through his daughter, since he spoke little English. When we investigated we found that the firm had not made sufficient attempts to explain the terms of the CFA to Mr C; particularly since it wasn’t clear whether he fully understood them without a translation.
We recommended that the firm’s original invoice should be waived and that Mr C should only pay disbursements, which amounted to around £200.
What our approach to all these cases has in common is the concept of reasonable expectations. In short, while we do not expect lawyers to lean over backwards to meet every need of their customers – existing or potential – we do expect you to make reasonable adjustments to their requirements, and to try and make sure that you do not disadvantage and exclude them by what you are doing. Do that and you can’t go too far wrong.
Adam Sampson is chief ombudsman