Contents

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.

Scheme Rules 2.1 Legal Services Act s.128

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 entities *2 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 takenover from a previous service provider. Please bear in mind that the Legal Ombudsman’s definition of a successor practice differs from the SRA’s.

*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.

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

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

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.

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 practitioners *3 this may not always be as straight forward. For further details on this please refer to the MDP policy.

*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. 

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 obviously wrong.

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

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.

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 association. 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.

Scheme Rules Chapter 3, 4.1, 4.2

Legal Services Acts.112 - complaints procedures of authorised persons

Resources

Guide to Good Complaint Handling

4. Investigating complaints

The Legal Ombudsman’s timescales for accepting complaints are set out in detail in our scheme rules. They are:

Scheme Rules chapter 4 - time limits

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.

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.

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.

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)

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.
• 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.

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.
• 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:

confirming whether a case fee is payable;

closing cases when remedies have been undertaken;

confirming the details which will be published for ombudsman decision data (see next section).

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

Please do not send original documents. All documents are scanned into our system and originals may be destroyed.

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

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

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.

Ombudsman decision data

Scheme rule 5.55 –publication of decisions

Legal Services Act s.150 –reports of investigations

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 (rule6.2 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 a case fee has been incorrectly applied you should let your investigator know, setting out how your situation fits with rule 6.2.

Scheme rules, chapter 6

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

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.

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.

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.

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 Relay UK: 18001 0300 555 0333

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 can 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