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The Legal Ombudsman Scheme Rules:
The Legal Ombudsman Scheme Rules: changes coming into force on 1 April 2023
The delays faced by both complainants and practitioners when dealing with the Legal Ombudsman (LeO) have long been an issue. Following a review of its Scheme Rules in 2022, LeO announced changes which will take effect from 1 April 2023. Although these are aimed at improving LeO’s operational efficiency, the changes should not be ignored by practitioners as they do seem to reflect a subtle tilt towards the interests of practitioners over those of users of legal services. James Robins and Ivan Roots of Womble Bond Dickinson, who are specialists in defending both LeO complaints and professional negligence claims, look at the changes which practitioners should be aware of and the steps that they will need to take
The most significant areas of change on 1 April 2023 are as follows:
Time limits for referring complaints
The time limit for referring a complaint to LeO under Rule 4.5 will be shortened from six years from the cause for complaint or three years from knowledge of the cause for complaint to one year in both cases. However LeO’s discretion under Rule 4.7 to extend these time limits where it is fair and reasonable to do so remains.
Discretion to dismiss or discontinue complaints
The grounds upon which LeO has discretion to dismiss or discontinue complaints are listed at Rule 5.7.
Firstly, there is a change to Rule 5.7(b). At present, this allows dismissal of a complaint where the complainant ‘has not suffered (and is unlikely to suffer) financial loss, distress, inconvenience or other detriment’. The word ‘significant’ is being added to this Rule, which will extend LeO’s discretion to complaints where the detriment is so minor that an investigation would be an inappropriate use of LeO’s resources.
Secondly, there is a new Rule 5.7(p), which will allow LeO discretion to dismiss or discontinue complaints which would not be a proportionate use of LeO’s time to investigate. However LeO have confirmed that this Rule will apply to only a very small proportion of cases so its effect may be limited.
Finally, new Rule 5.7(q) provides a ground for dismissal or discontinuance where there has been undue delay in raising the complaint. This is intended to catch subsequent complaints to an existing investigation, where the complainant should have known about the subsequent complaints when the investigation was begun.
Discretion to decline to escalate cases to an Ombudsman for decision
Where an investigator’s case decision has been provided to the parties, a revision to Rule 5.19(c) will provide that a final decision is only required where either party indicates disagreement based on the substantive new facts or evidence, or a challenge to the facts or evidence on which the case decision was made. This is a far higher hurdle than the current position where only a simple disagreement is required to trigger a final decision, without the need for any substantive reasons.
What do practitioners need to do?
Practitioners should ensure that their client care information, terms of business, information published on websites, and any signposting or guidance outlining when a complaint can be referred to LeO takes into account the changes to the Scheme Rules. The change in time limits for bringing complaints is a particularly important point to communicate to clients.
