The Legal Ombudsman can offer an informal mechanism for resolving complaints between clients and their legal service providers. In this independent guide, we explain what the Legal Ombudsman is, how it works and what the advantages and disadvantages of using it can be.
What is the Legal Ombudsman?
The Legal Ombudsman is a legal complaints handling service that was established by the Office for Legal Complaints, under powers conferred to it by the Legal Services Act 2007.
It is designed to resolve disputes over service in an efficient and informal way by seeking a consensus, wherever possible, between a complainant and the legal service provider.
The Legal Ombudsman is staffed by:
- Assessors – who act as the first point of contact for members of the public
- Investigators – who investigate complaints with a view to achieving an informal resolution
- Ombudsmen – who make final determinations in relation to complaints that have not been resolved informally
It is important to note that the Legal Ombudsman is not an advisory body and does not provide legal advice or representation to complainants.
Which professionals does the service cover?
The Legal Ombudsman is not restricted to considering complaints against solicitors alone. It can also consider complaints against barristers, licensed conveyancers, legal executives, notaries, patent attorneys, trade mark attorneys, cost lawyers, accountants (in connection with a reserved legal activity for which they are authorised) and claims management companies.
Can anyone make a complaint?
Not everyone can make a complaint. Under the Scheme Rules, a complainant must be either:
- An individual
- A micro-enterprise (defined as having fewer than 10 employees and an annual turnover or balance sheet below €2 million)
- A charity (provided annual income net of tax is below £1 million)
- A club, association or organisation (provided annual income net of tax is below £1 million)
- A trustee of a trust (provided asset value is below £1 million)
- A personal representative or beneficiary of the estate of a person who has died
What types of complaints are covered?
Generally, the Legal Ombudsman handles complaints relating to poor or inadequate service. This can take a wide variety of forms and can, for example, include:
- Failing to respond in a timely way to client correspondence
- Failing to hand over documents belonging to a client
- Failing to keep documents safe
- Failing to keep a client informed of progress
- Failing to provide appropriate information in relation to costs
- Failing to apply reasonable charges for work undertaken
- Failing to follow instructions within a reasonable period or at all
- Failing to investigate a complaint internally
Although there can be some overlap, this type of conduct may also be distinguished from misconduct and professional negligence.
Misconduct is usually concerned with breaches of the codes of conduct by which a particular profession is regulated and which are liable to result in disciplinary action being taken by a regulatory body, such as the Solicitors Regulation Authority or the Bar Standards Board.
Professional negligence, on the other hand, is usually concerned with mistakes made by legal professionals which result in a financial loss or liability and which, in turn, can give rise to a civil claim for financial compensation.
When can a complaint be made?
Before submitting a complaint to the Legal Ombudsman, a complainant will usually be required to have (i) made a formal complaint to the legal service provider concerned; and (ii) allowed that provider a period of 8 weeks in which to resolve the complaint.
If a final response has been issued by the service provider, but is not acceptable, a complainant who wishes to take the complaint to the Legal Ombudsman must usually then do so within 6 months.
Further, and in any event, complaints must usually be submitted to the Legal Ombudsman within 6 years of the date upon which grounds for the complaint arose, or 3 years from the date upon which the complainant could reasonably be expected to have known of those grounds, whichever is later.
How does the complaints process work?
The complaints process is usually dealt with on paper and while it is possible for either party to request a hearing, these are rare.
A complaint can be made to the Legal Ombudsman by email, letter or telephone and/or by completing a complaints form. Assuming the complaint is one that the Legal Ombudsman can consider (see further above), an investigation is likely to be commenced, with written representations relating to the complaint being requested from the legal services provider.
A written provisional assessment should then be made, which both parties will have the opportunity to accept or reject. If the provisional assessment is not accepted by both parties, the complainant may then request that the complaint be placed before an ombudsman.
After considering the complaint and undertaking such further enquiries as are deemed necessary, an ombudsman will produce a final written determination. The complainant alone will then have the option of accepting or rejecting this determination. If the determination is accepted, it will become binding on both parties, so that neither party may commence or continue legal proceedings in relation to the complaint. If the determination is rejected (or not accepted within the time-frame stipulated) then the complainant will be free to pursue a civil claim for compensation where appropriate.
While a final determination should be complied with by the legal service provider voluntarily, if it is not then it can be enforced through either the County Court or the High Court.
What remedies can the Legal Ombudsman provide?
The Legal Ombudsman has the authority to direct a legal service provider to:
- Apologise for its poor conduct
- Return documents that belong to the complainant
- Carry out additional work required to put things right
- Refund or reduce its fees
- Pay compensation to the complainant
What are the advantages of using the Legal Ombudsman?
Some potential advantages of using the Legal Ombudsman are that:
- The service is provided free of charge to complainants
- It is not necessary to appoint a legal representative in order to use the service
- The service can be relatively swift, particularly if a provisional assessment is accepted
- The Legal Ombudsman has a wide discretion and is not constrained by legal precedent
- A complainant is not bound by a determination of the Legal Ombudsman and if dissatisfied, can reject it in favour of pursuing a civil claim for compensation
What are the disadvantages of using the Legal Ombudsman?
Some potential disadvantages of using the Legal Ombudsman are that:
- A complaint must first be made to the legal service provider concerned, who is entitled to a period of 8 weeks to provide a final response
- The ombudsmen are themselves lay individuals and are unlikely to possess the same level of experience or qualifications as members of the judiciary
- There is a greater risk of inconsistency in the decision-making process, as determinations may be based on what is considered to be ‘fair and reasonable in all the circumstances’, instead of legal precedent
- The maximum compensatory award is limited to £50,000 (although most compensatory awards tend to be less than £1,000)
- It cannot determine allegations of professional negligence
- It does not stop the limitation period running on a professional negligence claim, which could become time-barred before the complaint is resolved
- Unless accepted, neither a provisional assessment nor a final determination in favour of a complainant will bind a court of law. Nor are they likely, by themselves, to be persuasive evidence of wrongdoing
- It is not usually possible to recover the costs of obtaining legal assistance or representation in relation to a complaint
- Without independent legal advice and assistance, presenting and pursuing a complaint can be time consuming, frustrating and bewildering
- The complaints process does not circumvent the procedural rules that must be complied with when commencing a claim for professional negligence, meaning that time can be lost if the complaint is rejected
- If the complaint is rejected, a legal service provider may be emboldened and less willing to concede a subsequent claim for professional negligence
Should I retain a solicitor before making a complaint to the Legal Ombudsman?
This is a decision that should be made on a case by case basis. If a solicitor is retained, he/she may well be able to assist with:
- Determining the merits of making a complaint
- Identifying the scope of the complaint
- Collating relevant evidence in support of the complaint
- Articulating / drafting the complaint in a clear and effective way
- Identifying any limitation issues that arise in relation to the complaint
- Minimising the risk of prejudicing any subsequent claim for professional negligence
However, these advantages should be balanced against the costs that are likely to be incurred in retaining a solicitor, which might exceed any compensation recovered and which themselves are unlikely to be recoverable from the legal service provider concerned, even if the complaint is upheld.
How might PNC Legal be able to assist?
If your legal service provider has made a mistake which has caused you to suffer financial loss, it may be more appropriate for you to pursue a claim for professional negligence, rather than make a complaint to the Legal Ombudsman.
As professional negligence solicitors we would be happy to discuss this with you, free of charge or commitment, as part of an initial consultation. If this would be helpful to you, please do not hesitate to contact us on 0800 195 4983 or by email at firstname.lastname@example.org.
At PNC Legal there is much more than just the fact that we specialise exclusively in resolving claims for professional negligence that sets us apart from most other solicitors.