Monday, September 08, 2008

Scottish Legal Services Ombudsman’s notice criticising Law Society of Scotland over poor complaints handling

The Scottish Legal Services Ombudsman has issued a notice criticising the Law Society of Scotland for poor complaints handling … a power not very much used as it should be …

Anyway, if you can get through the needed degree in algebra to understand Jane Irvine’s notice … then it might have some effect … however, we think not !

Monday, 8 September 2008

Scottish Legal Services Ombudsman

Section 34A of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990

Failure of the Law Society of Scotland [LSS] to comply with a recommendation from the Scottish Legal Services Ombudsman arising out of an Opinion by the Ombudsman on the Law Society’s handling of a complaint.

Factual background and Ombudsman’s recommendation

Mrs X, Mrs Y and Mrs Z went to the solicitors T, for advice about applying for guardianship of Mr X [Mrs X’s son] and to transfer the titles to Mrs X’s house into the names of Mrs Y and Mrs Z. The house had originally been bought in Mrs X and Mr X’s names.

The solicitors T failed to secure guardianship of Mr X. Mrs X, Mrs Y and Mrs Z therefore instructed another firm of solicitors H in this matter.

The LSS investigated 11 complaints of inadequate professional service against the firm of solicitors T and one complaint of professional misconduct against an individual named solicitor in that firm. The LSS upheld 6 complaints of inadequate professional service. The LSS decided to take no action in relation to the other 5 inadequate professional service complaints and the complaint about professional misconduct.

Mr Y complained to me on behalf of Mrs X, Mrs Y and Mrs Z about the LSS’s handling of their complaint and in particular that it was guardianship of Mr X that his family wanted and that they had instructed the solicitor accordingly.

Following my investigation, I concluded that I was critical of the manner in which the LSS had reached its decision in relation to Issues 1, part of 7 and 9. I was not persuaded or satisfied with the reasoning provided by the LSS in respect of these issues. I therefore recommended that the LSS reconsider all of these issues.

In relation to Issue 1 – I found that Mrs X, Mrs Y and Mrs Z had plainly and clearly asked the solicitors by letter to represent them in gaining guardianship of Mr X and this had not happened. There had been a failure to carry out an instruction. I recommended that the LSS should reconsider this complaint and provide detailed reasoning for its decision.

Regarding Issue 7 – I did not think that the LSS had provided clear reasoning in reaching its decision in relation to this complaint. The LSS had upheld Issue 5 which looked at the solicitors’ failure to provide the complainers with clear advice and instructions as to the format of the medical reports required and how to obtain these. Issue 7 looked at the failure to identify and approach the appropriate medical practitioners directly. I did not think that that the LSS had provided sufficient detailed reasoning in relation to identifying appropriate medical practitioners. In relation to Issue 5, the LSS had concluded that there was an obligation on the solicitors to ensure that the complainers were aware of the terms of the Act. I thought this should apply equally to this complaint.

In relation to Issue 9, I considered that the LSS had given too much weight to one piece of evidence and felt that there was in fact no evidence of what had or had not been said during a meeting.

I also recommended that the LSS pay Mr Y compensation and costs for the stress and inconvenience caused by the LSS’s inadequate investigation.

The LSS’s reasons for not accepting the Ombudsman’s recommendations

The LSS considered my recommendations and did not consider that it was necessary to accept the recommendations.

In the LSS’s view, the Committee had provided comprehensive reasons for its decisions and, in particular, why it had departed from the Reporter. The LSS said that the Committee’s reasons were sustainable. They were not perverse, illogical or clearly wrong. The LSS was not persuaded that the points made by the Ombudsman were so fundamental that the decisions reached by the Committee ought to be disturbed. The LSS was also content that the decisions were properly explained.

Issue 1 – The LSS said that the phrase “Guardianship” was legally meaningless. The LSS said that what could be sought was either a Financial Guardian, Welfare Guardian or both. The LSS went on to explain that such a Guardian was appointed by the Court and it was a specific person who was appointed. Accordingly, to say that a number of people wanted Guardianship, was, in legal terms meaningless. Accordingly, to say that the solicitors had plain and clear instructions regarding Guardianship could not be correct. The LSS said that as the term did not make sense in law, they were therefore not clear instructions. The Committee did not consider that the solicitor could be criticised for not doing something which could not be achieved in law. The LSS stated that what the Committee had done was to look behind the issue and note that at the root of the complainer’s concerns was the transfer of the title of the property.

It was the LSS’s view that on the instructions the solicitors had, they exercised their professional judgement that in order to obtain what the complainers were really after was best done by way of an Intervention Order and the Committee considered that this was a reasonable exercise of judgement.

Issue 7 – Again, the LSS did not understand why the Ombudsman did not totally follow the Committee’s reasoning in relation to this issue. The Committee noted that the solicitors agreed with the complainers that the complainers should approach the medical practitioners as a cost saving measure. The LSS wanted to emphasise that there was an agreement that the complainers would do this and the solicitors could not be criticised for failing to identify and approach when it had been agreed otherwise in order to (a) save money and (b) the complainers would know whom to approach as treatment was already being given.

The LSS noted that I had made reference to Issue 5. The LSS commented that there was a difference between Issues 5 and 7 in that the identification of the doctors was a different issue from giving the doctors clear information as to the form of the medical report required to satisfy the Court.

Issue 9 – The LSS stated that it was for the Committee to assess the evidence. There was conflicting evidence from the parties as to what happened. The other two pieces of evidence were, firstly, the £500 payment to account and secondly, the fact that the file was silent. The Committee regarded the latter issue as neutral. The Committee considered that the payment of £500 was a factor to be weighed up in the balance. It was accepted that it did not prove that the solicitors told them, but it was supportive of the solicitors’ position.

The LSS did not accept that the payment was an irrelevant factor; rather it was one factor to be weighed in the balance. It did not prove that the solicitor did not do something, but it was supportive of their position and the Committee were entitled to decide the weight to be attached. The LSS said that if this matter was considered irrelevant then all the Committee would have been left with was two conflicting views and a silent file and would not have been able to uphold the issue because of lack of evidence.

The LSS was content that the decision reached was reasonable and reasonably explained.

The Ombudsman’s view

I was concerned that the LSS had missed the crux of Mrs X, Mrs Y and Mrs Z’s complaint in relation to Issue 1. Put simply the complainants had asked the solicitors to do something for them and this was not carried out. The LSS had attempted to look behind the request and had not upheld the complaint on this basis. If a specific instruction has been given to a firm of solicitors, a client would expect this to be acted upon and if there was a problem with the instruction as given, I would expect the solicitors to explain this to the client and explain what they are able to do. This was the complaint that the LSS agreed to investigate and is the issue that the LSS has side stepped.

In relation to Issue 7, I accept that the complainants had agreed to approach the medical practitioners themselves as a cost saving mechanism. There should have been a duty on the solicitors to ensure that the complainants knew exactly who to contact. The Act is specific regarding the qualifications required by the medical practitioner completing the form and this was not something that the solicitors explained to Mrs X, Mrs Y and Mrs Z. The LSS has already upheld the complaint that the solicitors failed to provide the complainers with clear advice and instructions as to the format of the medical reports required. The Committee stated that the solicitor had an obligation to ensure that the complainants were aware of the required terms of the Act. Applying this same logic, it would appear equally that the solicitors failed to provide the complainers with clear advice in relation to the appropriate medical practitioners to approach as this was also a specific requirement under the Act. I do not think that the LSS has looked at this complaint consistently and in line with the other complaints that it has already decided.

Regarding Issue 9 – I think that too much weight was given to the fact that £500 was paid on account. I do not think that this shows one way or another whether the solicitors told the complainants about civil legal aid. I think that the LSS could have simply stated that there was insufficient evidence to uphold this complaint rather than attaching so much importance to the £500.

Jane Irvine
Scottish Legal Services Ombudsman
Scottish Legal Services Ombudsman

Section 34A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Failure of the Law Society of Scotland to comply with a recommendation from the Scottish Legal Services Ombudsman arising out of an Opinion by the Ombudsman on the Law Society’s handling of a complaint.

Background and Ombudsman’s recommendation

Following the death of the complainer’s husband, the complained of firm of solicitors handled the administration of his estate. The complainer complained of a lack of information from the solicitors which put her in difficult circumstances.

The complaint has been considered by the LSS. The LSS decided not to investigate some of to the issues raised and subsequently closed its complaint file when it appeared the complainer had abandoned the complaint.

When I examined the matter although concluding the LSS handled the complaint in a generally satisfactory manner, I was concerned at the speed with which the decision was taken to close the complaint file. Part of that concern was that the complainer may not be familiar enough with the British system to manoeuvre her way through it at a particularly distressing time. I had observed the LSS Sifting Panel’s comments that further information should be sought on the solicitors’ alleged failure to communicate with the client. In light of those comments I recommended the LSS consider whether to provide the complainer with another opportunity to give the LSS the information it had requested. I considered it reasonable for the LSS to set a clear time limit to receiving that information.

As I considered the speed of decision to close the complaint file had inconvenienced the complainer I recommended the LSS should pay her £25 in compensation and £10 towards the cost of bringing her complaint to me.

The LSS’s reasons for not accepting the Ombudsman’s recommendations.

The LSS does not accept my recommendations. Its stated view is that the Ombudsman had recognised the LSS provided the complainer with a letter stating clearly if she did not respond within 14 days then the file would be closed. The complainer was not in touch within that period and the file was then closed. The question then arises as to whether the LSS ought reasonably to have adjusted its process to take account of any special circumstances pertaining to the complainer. The Ombudsman had suggested two such circumstances that the complainer might not be familiar with “the British System” and secondly that she was going through a distressing time.

The LSS stated has two sources of information to indicate that understanding English or a “British system” was not an issue for the complainer. She had stated she was not a native English speaker but thought her level good enough. The LSS said the standard of correspondence from the complainer was very good.

If the LSS treated all non British people differently or automatically adjusted its process without due cause then that could be seen as discrimination in itself. In the LSS’s view each situation required to be looked at objectively in order to form a reasonable conclusion. In this case the complainer had not indicated she had any special needs and it was reasonable and supportable that her English was not at a level where it would be a barrier thus requiring an adjustment to the process. The LSSS had taken advice from its Head of Diversity in reaching this considered view.

The LSS noted the Ombudsman’s second contention was that the complainer was suffering a distressing time. That was sadly very much the case. It was also very unfortunately often the case for many complainers if not nearly all to be in a distressing situation upon contacting the LSS. Often the reason they have contacted a solicitor is because they have suffered a distressing life event. It is therefore doubly distressing to have to require to make a complaint on top of that.

There was in the LSS’s view no good reason why it required to adjust its process to take account of the complainer’s situation.

Ombudsman’s view

I considered the LSS response had failed to address the concerns I had identified and had concluded that when linked together amounted to circumstances that merited the LSS contacting the complainer for further information albeit with a very specific deadline.

I had drawn the LSS’s attention to the specific but linked difficulties i.e. by implication the exceptional circumstances the complainer faced. I considered the LSS’s response separated these concerns, appearing to examine them as unrelated matters.

I had referred to the complainer’s knowledge of “the British System” but there was however no special pleading with regard to her knowledge of the English language which is how the LSS had interpreted that reference. The problems identified were in relation to how solicitors carry out their functions and how the Inland Revenue operates. Both of these are to do with the legal and tax systems in Scotland and Britain.

The other linked concern I highlighted was in relation to the complainer’s personal circumstances. I agreed many complainers who approach the LSS experience similar and no doubt even more distressing circumstances. The complainer’s situation was cited as only one of the concerns I had identified. I had also set my recommendation in the context of the view of a LSS Sifting Panel that the complainer should be asked for further information on the solicitors’ alleged failure to communicate with her.

I confirmed my appreciation the LSS’s 14 day time limit for replies from complainers can move things on successfully. I had however in the past identified a concern which continues in light of this LSS response with the differing time limits allowed to complainers and to complained of solicitors.

The matters I had identified gave me enough concern to recommend the reconsideration by the LSS of its decision. Those matters were deliberately linked in the recommendation to underline that view.

The LSS second response

In its response to my views the LSS confirmed it adhered to its initial response. The LSS felt it had acted fairly albeit appreciating the complainer in common with many others found herself in highly distressing circumstances.

Ombudsman’s conclusions

This is a complaint which raises issues of the use of reasonableness when examining all a complainer’s circumstances relevant to a complaint. My view remains that in this case it is not a matter of language but of a lack of familiarity with both the legal and the tax systems in Scotland. The LSS is also aware that I consider time limits are necessary and important to a complaints process and hence why I took care to specify in the recommendation that it was reasonable for the LSS to set a clear time limit to receiving that information. However as the time limit for a complainer is 14 days rather than the 21 days statutory time limit for solicitors, I consider that a tight deadline and in particular not that long when it the result is to exclude someone from a complaint process. I agree with the LSS that complaints have to be managed and setting time limits is an important part of that process. However it is a very serious step to throw a complaint out of a complaint system leaving a lay complainer nowhere else to go - save court and so I consider these cases very seriously.

My conclusion remains that the complainer’s circumstances when taken as a whole merited the LSS using the flexibility available to it to give one final and limited opportunity for the complainer to provide the information the LSS required. I concluded in simply adhering to its formal response the LSS has failed to appreciate and therefore give appropriate consideration to the actual terms of my recommendation.

Jane Irvine
Scottish Legal Services Ombudsman

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