Legal Ombudsman October 2016

Complaint Handlers

Guide

1

Legal Ombudsman Complaint Handlers Guide

Contents

1. Summary 2

2. Jurisdiction 2

3. First Tier Complaints Handling 4

4. Investigating complaints 6

5. Additional information 10

2

Legal Ombudsman Complaint Handlers Guide

1. Summary

The aim of this guide is to give legal service providers and complaint handling

staff a clear understanding of how we work. The guide includes information

about key elements of our process. We will add further guidance information

from time to time. If there are any topics that you would like to receive further

information on please let us know.

We hope that you will find this a useful guide to the Legal Ombudsman.

Anyone using this information should keep in mind that our powers are drawn

from the Legal Services Act 2007, and are set out in further detail in our

Scheme Rules. We have referred back to these documents where possible.

They can be found in full at:

Scheme Rules

Legal Services Act 2007, Chapter 6

2. Jurisdiction

The Legal Ombudsman’s jurisdiction is set out in the Legal Services Act (LSA) and in further

detail in our Scheme Rules. Here we aim to give you an overview of the key areas of our

jurisdiction.

a. Who can complain?

Over 90% of the complaints received by the Legal Ombudsman are from members of the

public. In addition we accept complaints from:

- Beneficiaries and personal representatives of an estate;

- Prospective clients;

- Small businesses with a staff of less than 10 and an annual turnover or assets of less

than €2 million;

- A charity, club or association with an annual income of less than £1million;

- A trustee of a trust that had an asset value of less than £1million.

Many providers do not realise that we can accept complaints from beneficiaries and

personal representatives. This power is set out in s.128(4)(c) of the Act. We expect legal

service providers to respond to complaints from beneficiaries and personal representatives.

For further information:

Scheme Rules 2.1

Legal Services Act s.128

3

Legal Ombudsman Complaint Handlers Guide

b. Who do we accept complaints about?

The Legal Ombudsman can accept complaints about all authorised persons covered by the

following regulators:

Solicitors Regulation Authority (SRA)

Bar Standards Board (BSB)

Council for Licensed Conveyancers (CLC)

CILEx Regulation

Costs Lawyers Standards Board (CLSB)

Intellectual Property Regulation Board (IPReg)

Faculty Office

Claims Management Regulator (CMR)

Institute for Chartered Accountants England and Wales (ICAEW)1

Our jurisdiction is generally based on the entities2 or firms themselves. However, an

authorised person based in an organisation such as a law centre or consumer advice

organisation also falls within our remit.

The Legal Ombudsman will accept complaints about legal service providers that have

closed or where a successor firm has taken over from a previous service provider. Please

bear in mind that the Legal Ombudsman’s definition of a successor practice differs from the

SRA’s.

c. What can consumers complain about?

The Legal Ombudsman can investigate complaints about the service customers have

received from their legal service provider. For example, we can look at whether:

- customers received clear information about how much the work would cost;

- there was a clear understanding about the work that was taking place;

- there were unreasonable and unexplained delays;

- the customer was provided with sufficient updates along the way, particularly if there

has been a change in the circumstances.

1 The Legal Ombudsman has jurisdiction over ICAEW members who have been authorised to carry out probate activities. 2 An entity also includes barristers who are considered an entity as they are self-employed.

For further information:

Scheme Rules 1.7 & Legal Services Act s.18(1) - authorised

persons

Scheme Rules 2.9 and 2.10 and Legal Services Act s.132 -

successor practice

4

Legal Ombudsman Complaint Handlers Guide

While the Act allows us to investigate any activities undertaken by an authorised person, we

only look at complaints which relate to a legal service. This is usually quite straight forward.

However, in the case of alternative business structures (ABS) and multi-disciplinary

providers (MDP), accountants, and insolvency practitioners3 this may not always be as

straight forward. For further details on this please refer to the MDP policy.

d. Can consumers complain about negligence?

We are a lay organisation and therefore do not look at questions of law. However, we will

accept complaints which raise concerns about potential negligence. Rather than making a

legal decision on whether there has been negligence we will consider whether the service

has been reasonable. Often these cases highlight issues regarding professional advice and

judgement. Our test is to consider whether the advice was so unreasonable that no other

reasonable lawyer would have provided it.

e. Further areas for guidance

We have mentioned in this chapter, but not provided detail on the following topics:

- successor firms;

- beneficiaries;

- negligence.

Watch out for further guidance in these areas. In the meantime if you have questions on

these areas please contact enquiries@legalombudsman.org.uk.

3. First Tier Complaints

Handling

a. Signposting requirements

All authorised persons are required to have and follow a complaints handling process. This

is set out in the Legal Services Act, by the LSB, and in your regulatory code of conduct. The

key signposting requirements are that service providers must notify clients:

a. at the time of engagement,

of their right to make a first-tier complaint

how they can make a first-tier complaint and the details of who that complaint

needs to be made to

of any rights to make a second-tier complaint to the Legal Ombudsman if they

are not satisfied with the response from the authorised person

the point at which a second-tier complaint can be made to the Legal

Ombudsman, and

full details of how to contact the Legal Ombudsman.

3 ABS – Alternative Business Structures, MDP – multi-disciplinary practice, accountants – ICAEW accountants licensed to undertake probate activities, insolvency practitioners – those who are dual regulated by the Solicitors Regulation Authority as well as an insolvency practitioner regulator.

5

Legal Ombudsman Complaint Handlers Guide

b. that if after eight weeks following the making of a first-tier complaint, it has not

been resolved to the client’s satisfaction, the final complaint response must say,

that the client may have a right to complain to the Legal Ombudsman

the time limit for doing so, and

the full details of how to contact the Legal Ombudsman

If you do not provide this information in your final response, or do not send a final response,

then you will be charged a case fee.

c. How long do I have to respond to a complaint?

All customers are required to complain to their legal service provider before taking a

complaint to the Legal Ombudsman. Our scheme rules state that legal service providers

have eight weeks to review complaints at the first tier. We can begin an investigation after

this eight week period has finished, or once you have sent a final complaint response (if this

is within the eight weeks).

In exceptional cases the Legal Ombudsman can consider the complaint earlier; for example,

if the relationship has broken down or if we consider that there is potentially a serious

situation developing where it is in the public interest to investigate.

d. EU Alternative Dispute Resolution

You may also be aware of a recent EU Directive and UK regulations on Alternative Dispute

Resolution (ADR) which came into effect on 1 October 2015. Further details on your

obligations to signpost to an ADR entity are available through your professional

association4. If you decide to use an ADR body the Legal Ombudsman can still consider

complaints that have previously been considered by an ADR entity.

e. Best practice in complaints handling

The Legal Ombudsman publishes a range of information, which you can use to inform your

complaints handling. Links are included below.

4

6

Legal Ombudsman Complaint Handlers Guide

4. Investigating complaints

a. Time limits for accepting complaints

The Legal Ombudsman’s timescales for accepting complaints are set out in detail in our

scheme rules. They are:

For further information:

Scheme Rules Chapter 3, 4.1, 4.2

Legal Services Act s.112 - complaints procedures of authorised

persons

Resources

Guide to Good Complaint Handling

Signposting pack – including suggested wording

CPD courses

LSB Policy

Complaints data

For further information:

Scheme Rules Chapter 4 – time limits

a. The customer must refer the

complaint to the Legal

Ombudsman no later than six

years from the act / omission.

b. If the complaint happened more

than six years ago, then the

customer must have found out

about the problem in the last three

years.

c. The customer must refer the

complaint within 6 months of

receiving a final response from the

legal service provider (as long as

the consumer is told about this time

limit in the final response letter).

or

7

Legal Ombudsman Complaint Handlers Guide

b. Assessing complaints

Complaints are initially dealt with in our assessment centre (AC). They do the following:

Assess whether complaints are in jurisdiction. Checking timescales, who is

being complained about, and whether the customer has received the service

themselves.

Advise on premature complaints. We receive a high level of calls from

customers who have not yet complained directly to their service provider. If

this happens, our assessors will refer them back to you, and, if the customer

wants, they will let you know that we have received a possible complaint. They

will remind customers that their service provider has eight weeks to deal with

complaints.

o At this stage the AC may, if requested by the customer, send you a letter

to let you know a customer has contacted us. This letter is to make you

aware that you are likely to receive a complaint, that we have not accepted

the complaint for investigation, and that you do not need to contact us.

Accept complaints for investigation. If a customer has received a final

complaint response, or the eight week complaint period has passed, the AC

will accept a complaint for investigation.

o Once a complaint has been accepted for investigation you will receive a

letter to confirm it. If the customer has not provided it, the AC will contact

you to obtain a copy of the complaint and your final response. If you do not

provide this information it could lead to a misconduct referral to your

regulator.

o A complaint will be put into the queue and allocated to the investigator in

due course.

Respond to early challenges to jurisdiction. (see page 12)

c. Investigating complaints

The role of the investigator is to listen to both sides, look at the facts of the case, review

the evidence, decide whether the service has been reasonable, and then to try and help

the parties agree a resolution.

Evidence review:

Once a complaint has been accepted for investigation an investigator will

usually contact both the customer and firm within five working days to

introduce themselves.

They will undertake an initial review of the complaint to assess the key

questions which need answering, and gain an understanding of the complaint

and views of both parties. They will confirm the complaints they are

investigating and ask for relevant evidence. The nature of the complaint

determines what evidence the investigator will need to see. We rarely need to

see the whole case file, and the investigator will ask for specific documents.

Sending unrequested documents will only slow an investigation down, and an

investigator may request you to re-send the specific items.

8

Legal Ombudsman Complaint Handlers Guide

We usually ask for evidence to be submitted within 10 working days. If you

have trouble meeting this deadline please contact your investigator who can

consider an extension.

When we receive information your investigator should acknowledge this and

provide you with an estimate of how long it will take to review the information.

This will vary depending on the amount of information provided.

Once an investigator has reviewed the evidence, assuming they have seen all

the key documents, they will set out their views on a complaint and whether

the service was reasonable. Once both parties have heard the initial views

they may wish to submit additional evidence, if so this will be taken into

consideration.

What happens if evidence is not provided?

Request, remind, proceed. We will make a request for evidence to both

parties. If this is not provided within the specified time we will remind the

relevant party of the request for evidence and provide a further extension. If

we do not receive the evidence within this time we will proceed with our

investigation and make our decision based on the evidence which is available

to us (scheme rule 5.32(a)). We may, in certain circumstances, draw adverse

inferences from the failure to provide the requested evidence (rule 5.32(b)).

If we do not receive evidence from the lawyer within the requested timescale

we will make a report of potential misconduct to the relevant approved

regulator for failure to cooperate with our investigation, as per LSA s.145. Any

evidence submitted after this may be taken into consideration but we will use

our discretion to decide whether it is appropriate.

d. Resolving complaints

Informal resolution

Throughout the investigation our investigators will review whether it is possible

to informally resolve the complaint. Informal resolution means that the

investigator is able to either assure the complainant that there has been no

poor service, or, negotiate a remedy which is acceptable to both parties. This

will be confirmed in writing. An informal resolution is an agreement that both

parties have agreed to accept. It is not legally binding, so complainants can re-

open a complaint if the informal agreement is not maintained, and the process

continues.

Preliminary decision

If informal resolution is not possible the investigator will prepare their

preliminary decision on the investigation. This details the complaints, the

evidence we have reviewed, and our conclusions based on the evidence.

The preliminary decision is sent to both parties for comment with 10 working

days to provide their views.

If both parties agree with the preliminary decision the complaint is resolved by

informal resolution at this stage.

9

Legal Ombudsman Complaint Handlers Guide

If either party disagrees it will proceed to an ombudsman decision. If the

complainant rejects the complaint we will ensure that the lawyer has the

opportunity to provide their comments.

If the complainant fails to respond we will consider closing the complaint under

rule 5.20. If this happens, and a remedy had been recommended, the lawyer

will not have to undertake the remedy.

If the lawyer fails to respond and the complainant has responded the

complaint will be referred for an ombudsman’s decision.

If neither party responds we will treat the complaint as informally resolved by

the preliminary decision (scheme rule 5.20).

Ombudsman decision

When an ombudsman reviews the case they will look at the case file,

preliminary decision, and views of both parties to come to their own conclusion

on the case.

If they agree with the investigator they will issue a final decision stating why.

If the ombudsman’s views differ greatly from the preliminary decision they will

set out their views in a provisional decision, which will be sent to both parties

for comment, before a final decision is made.

Once a final decision has been made it is sent to both parties. If the customer

decides to accept the decision it is binding on the legal service provider. If the

customer does not agree then there are no further steps to our process. Both

parties have 10 working days to respond to the final decision.

Finalising complaints

Once a complainant has received a final decision they are passed through to

our Resolution Coordination Team. They are responsible for:

o confirming whether a case fee is payable;

o closing cases when remedies have been undertaken;

o confirming the details which will be published for ombudsman decision

data (see next section).

e. Practical details

How long will it take to resolve the complaint?

The length of a complaint will vary depending on the issues and the complexity of the

case. Most cases are resolved within three months and over 90% are resolved within

six months. All cases are usually resolved within one year.

How to send information

We prefer information to be sent by email directly to your investigator. Alternatively you

can send information by post, quoting your case reference number. Our postal address

is:

Legal Ombudsman, Po Box 6806, Wolverhampton, WV1 9WJ

10

Legal Ombudsman Complaint Handlers Guide

Please do not send original documents. All documents are scanned into our system

and originals may be destroyed.

f. Further areas for guidance

We have mentioned in this chapter, but not provided detail on the following topics:

Evidence and deciding on poor service

Remedies

Watch out for further guidance in these areas. In the meantime if you have any

questions please contact us at enquiries@legalombudsman.org.uk.

5. Additional information

a. Publishing decisions

The Legal Ombudsman publishes summary information about all complaints which have

received a final ombudsman decision. This information is published every three months

and contains decisions from the last twelve months.

b. Case fees

The Legal Services Act requires the Legal Ombudsman to set a structure for charging a

case fee. The case fee is currently set at £400.

Chapter 6 of the scheme rules sets out the rules for case fees, the situations when it is

not chargeable (rule 6.1 a) and b)) and when it may be waived (rule 6.2 a) and b)). Case

fees can be waived in certain circumstances and depend upon the outcome of the

complaint and how well the complaint was dealt with at the first tier. If you consider that

For further information:

Scheme Rules chapter 5 - How we investigate.

Legal Services Act, s.144-146 - Co-operation with investigations s.144-146,

Legal Services Act, s.147-152 – Information

For further information:

Ombudsman decision data - http://www.legalombudsman.org.uk/raising-

standards/data-and-decisions/#ombudsman-decision-data

Scheme rule 5.55 – publication of decisions

Legal Services Act s.150 – reports of investigations

11

Legal Ombudsman Complaint Handlers Guide

a case fee has been incorrectly applied you should let your investigator know, setting

out how your situation fits with rule 6.2.

c. What to do if your indemnity insurer is aware of the complaint

Under the Legal Services Act you have a statutory obligation to cooperate with the

Legal Ombudsman. However, we are aware that indemnity insurers place different

obligations on you around informing them about complaints, particularly when there may

be a negligence issue, which can provide conflicts for legal service providers and

difficulties around cooperating with our investigations.

If this happens please contact your investigator to discuss the issue so all parties can

work together to address the complaint.

d. How to raise jurisdiction questions

If you think a complaint is:

outside of our jurisdiction (as per chapter 2 of our scheme rules); or

outside of our time limits (as per chapter 4); or

should be dismissed for any other reasons,

then you have the right to challenge our decision to accept a complaint for investigation

under scheme rule 5.4.

If you wish to challenge whether a complaint should be investigated it is helpful to put

this in writing highlighting the relevant rules. If we receive a challenge we will always

ask the customer for comments, and once these are provided the information will be

sent to an ombudsman for consideration. Once it has been sent to the ombudsman we

expect to make decisions within 14 days. However, this timescale can vary.

e. What to do if you are not happy with our service

Our aim is to provide a fair, independent and effective service for all parties and we

have a set of service principles which set out what you can expect from us.

If you are not happy with the standard of service you have received during your

investigation you should raise this with us as soon as possible, and firstly with the

investigator involved. Full details of our service complaints procedure are on our

website. This process allows you to raise concerns about the service that you have

received from us, however it will not look at issues such as the outcome of the legal

complaint.

For further information:

Scheme rules, chapter 6

Legal Services Act, s.136 – charges payable by respondents

12

Legal Ombudsman Complaint Handlers Guide

How to contact us

We are open Monday to Friday between 8.30am and 5.30pm

If you are calling from overseas, please call +44 121 245 3050

For our minicom call 0300 555 1777

You can call us on 0300 555 0333

(Calls to the Legal Ombudsman cost the same as a normal 01 or 02 landline number,

even from a mobile phone, and are recorded for training and monitoring purposes).

You cal also email us at

enquiries@legalombudsman.org.uk

If you want to find out more about us and what we do, please visit

www.legalombudsman.org.uk

Write: If you prefer, you can write to us at

Legal Ombudsman

PO Box 6806

Wolverhampton

WV1 9WJ