December 2018
First tier complaint handling A guide to effective and efficient complaint handling for Scottish solicitors
about this guide
One of the SLCC’s statutory functions under S40 of the Legal Profession and Legal Aid (Scotland) Act 2007 (“The Act”) is to monitor and identify any trends in complaints. This includes; how the profession deals with matters that lead to complaints being made, and how practitioners deal with complaints. Where we identify deficiencies in these areas, we can issue guidance and “best practice notes” to the profession, including making recommendations for improvements to standards for systems for dealing with complaints.
Pages containing section 40 guidance are marked with the blue triangle symbol.
our guidance
Our guidance is aimed at providing practitioners with clarity around why complaints are made and how they can be avoided. Awareness of triggers for complaints and drawing on complaints handling experiences allows practitioners to manage future risk and to drive up standards within their own organisations. Whilst this guidance is not mandatory, non-compliance will be taken into account where a complaint has been made. Practitioners may have to justify any departure from this guidance or provide an explanation about why the guidance should not apply.
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When investigating a complaint, the SLCC may take the following action: Where there is a failure by a firm to have a complaints process, and provide this to the SLCC, this may be considered as inadequate complaint handling, resulting in a finding of Inadequate Professional Service (IPS) to the client Where there is a failure to follow the firm’s complaints process, this may also amount to inadequate complaint handling, resulting in a finding of IPS Where a complaint has not been dealt with appropriately, the SLCC may raise this as an additional issue of complaint.
impact of guidance
The above points may also be a reason for the SLCC to enforce the maximum complaints levy of £3,500.
Understanding how best to deal with complaints is important to the success of early resolution, customer satisfaction and for maintaining business relationships. When complaints are not handled well at first tier this creates costs for the firm and the sector as a whole. Practitioners, therefore must be alive to, and put in place, measures to deal with “any expression of dissatisfaction”.
added value
We hope that having clear and defined requirements for dealing with complaints will give practitioners the confidence to handle complaints themselves and avoid the need for complaints to be made to the SLCC.
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introduction
No matter how good the service solicitors provide, or aim to provide, complaints are inevitable. In fact, our statistics show that the 'average legal practitioner' in Scotland is likely to be named in 2 formal complaints to the SLCC over a 40 year period. With a recent survey suggesting that the majority of legal firms generate at least half of their work from repeat clients, the importance of customer loyalty, and by extension good complaints handling, should be key to good business. A good complaints handling system not only contributes to better client retention, but allows complaints to be looked at positively rather than defensively. If approached correctly, complaints can provide a better insight into the needs and expectations of clients and, where justified, can be used to improve the service provided.
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"...the average legal practitioner in Scotland will be named in two complaints over 40 years."
principles of good complaint handling We recommend that a good complaints handling system should cover 6 basic principles. Â It should be:
accessible timely user-orientated resolution focused objective a learning tool for continuous improvement
A c PAGE 05
an accessible complaints process
Having a clear written complaints process in place is an absolute requirement for all Scottish solicitors. The complaints process should be clear and transparent, well publicised and free.
To assist in the creation of a written complaints procedure the Law Society of Scotland has issued guidance which advises on the essentials of the procedure, including: who to contact in the first instance with any concerns, i.e. instructed solicitor, Head of Department, Client Relations Manager what next steps to take if the complainer remains dissatisfied what information is required to deal with the complaint the timescales involved in dealing with a complaint the method of dealing with the complaint, i.e. in writing or a meeting how matters will be finalised how will the outcome be communicated to the complainer if matters are not resolved, why have they not been resolved?
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section 40 guidance
best practice guidance
1.1 accessibility
1.1.1
The complaints process should include a clear description of what constitutes a complaint. Remember that the SLCC accepts “any expression of dissatisfaction” as a legitimate complaint.
1.1.2
The complaints process should be accessible to all—both in terms of language and location.
1.1.3
The complaints process should refer to the SLCC as being the body responsible for dealing with complaints, and provide up-to-date contact details.
1.1.4
Legal firms should ensure that the complaints process is made known to all staff, so that anyone who receives a complaint knows the correct steps to follow.
1.1.5
We encourage practitioners to have a separate written complaints process for third parties, i.e. non clients, who can also make a complaint.
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dealing with complaints in a timely manner
Complainers want their concerns to be addressed quickly, and dealing with a complaint promptly can prevent it from escalating. It is important, therefore, that complaints are dealt with in a timely manner and without avoidable delay. The SLCC usually allows at least four weeks for a complaint to be dealt with by a practitioner before it will consider the complaint. It is hoped, that during this time, attempts can be made to resolve matters to the satisfaction of all concerned. While having standard timescales can serve as useful targets, bear in mind that the timeframe for dealing adequately with a complaint may vary due to the scope and extent of the matters complained of. Some complaints may be complex and therefore take longer. It’s important to balance timeliness with taking enough time to deal with all the concerns fully. Where it appears that a complaint may take longer to deal with than initially expected, ensure that the complainer is kept up to date with developments and revised timescales.
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section 40 guidance
best practice guidance
1.2 timelines
1.2.1
Realistic timescales and targets should be set for responding to complaints.
1.2.2
Responses to the complainer should be within the timescales provided.
1.2.3
Complaints should be dealt with promptly and thoroughly.
1.2.4
Complainers should be kept “in the loop” about timescales, particularly where those change, or look likely to.
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a userorientated complaints process
At the outset, the approach to the complainer should be empathetic and not defensive. Engage openly, demonstrating an understanding of all of the issues which the complainer has raised. Bear in mind that it may have been difficult for the complainer to raise the matter. They may also have special needs or requirements which need to be accommodated. You need to be able to demonstrate that you have understood the complaint that is being made. The complainer might not have actually used the word “complaint”, but the issues that they are raising are clear signs of dissatisfaction. Summarise back to the complainer what your understanding of the issues are, for clarity and to reach agreement. Once the investigation has taken place, explain the outcome openly, providing clear reasons for any conclusions reached. In all communications, use non-emotive language in terms that will be readily understood. Be aware of any duties of confidentiality when dealing with non client complainers, i.e. third party complaints. Although obliged to respond to complaints raised, this does not override the duty of client confidentiality and legal professional privilege. This should be carefully explained to third party complainers, so that they understand that a full response to the issues raised might not be possible, unless your client consents to release information.
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s g
section 40 guidance
best practice guidance
1.3 user-orientated
1.3.1
The complaints handling process should be transparent, fair and unbiased.
1.3.2
Clear explanations and reasons should be provided for any decisions reached and legal jargon should be avoided.
1.3.3
Procedures should be in place to deal with all kinds of complaints and complainers, bearing in mind that complaints can come from anyone, not just your own client. Â Â
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resolutionfocused investigations
When dealing with the complaint, explore what the complainer wants to resolve matters and, where appropriate, consider potential ways to put matters right and/or offer redress at the earliest opportunity.
Where resolution is agreed with the complainer, ensure that this is carried out promptly.
Acknowledge if something went wrong and, where appropriate, offer a suitable remedy along with a full explanation of what happened.
In research undertaken by the SLCC in 2012, over a quarter of all complaints were resolved by way of an apology, removing the need for those complaints to be escalated to the SLCC. Bear in mind that a simple apology may often resolve matters.
Before issuing an apology you should, however, confirm with your professional indemnity insurers that they are content for you to do so.
It is also worth remembering that under the Apologies (Scotland) Act 2016, “In any legal proceedings… an apology… is not admissible as evidence of anything relevant to the determination of liability… “
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section 40 guidance
best practice guidance
1.4 resolutionfocus
1.4.1
Check with the complainer what might  resolve matters for them.
1.4.2
Complainer expectations should be managed, advising  what can and cannot be done as part of any resolution.
1.4.3
Steps should be taken to implement any agreement without delay.
1.4.4
If the complainer remains dissatisfied at the end of the investigation, the complainer should be signposted to the SLCC.
1.4.5
Engage in any opportunities to resolve the complaint. Even if a complaint has been made to the SLCC, there are opportunities to resolve the complaint at all stages throughout the process.
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an objective complaints process
To achieve and maintain credibility, it is important that a complaints process is transparent and fair.
Information on the complaints process should be made freely available to staff and complainers. Complaints should be dealt with in a consistent manner, which is, at the same time, proportionate to the complaint.
The investigation of the complaint should be based on the facts surrounding the matter complained of rather than on assumptions. To that end, it is important to speak to anyone involved in the matter rather than second-guess what might have happened on the strength of usual practice.
For sole practitioners or small practice units, maintaining independence in dealing with a complaint can be a challenge. It might be useful to speak to your local Law Society representative and/or consider some form of buddying arrangement for the complaint to be dealt with independently and objectively.
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section 40 guidance
best practice guidance
1.5 objectivity
1.5.1
The process for dealing with complaints should be user-friendly, transparent and fair.
1.5.2
All complaints should be dealt with in a consistent manner.
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complaints data as a learning tool for continuous improvement
For a complaints process to be fully effective, it is important to record and collate centrally information on complaints.
Keeping an up-to-date complaints log can provide a business with an invaluable learning tool.
Learning from complaints and acting on feedback, particularly where systemic findings suggest areas for improvement in practice and service levels, is vital to the ongoing success of your business. Â
Obtaining feedback on the way that a complaint has been handled is also important, and on the basis of comments received you may wish to review your process.
In larger firms, feedback can ensure that the role of the Client Relations Manager and other complaints handlers are being monitored and continuously improved.
Good complaints handling can be a positive experience, as dealing well with complaints invokes consumer confidence that the firm is customer focused. Â
To download a copy of a complaints log template, click here. Â
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section 40 guidance
best practice guidance
1.6 learning
1.6.1
A well maintained, centralised log of complaints should be maintained, which can be used for training and improvement.
1.6.2
Feedback should be sought from complainers on the complaint process.
1.6.3
The outcome of complaints findings should be shared within the firm.
1.6.4
The complaints process should be regularly reviewed.
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Putting guidance into practice
3 steps to effective complaint handling
In practical terms, the SLCC sets out 3 basic steps to effective complaint handling. The SLCC considers that it would be best practice for solicitors to adopt these steps when dealing with a complaint.Â
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effective complaint handling
engage
explain
respond
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1. engage Engaging with the complainer should be the first step in dealing effectively with a complaint. It is important to understand the issues causing concern and the impact from the complainer’s perspective. You should be able to identify, preferably from the outset, where matters might be resolved and where more focused discussion might be required. We see a significant number of complaints about a firm’s failure or delay to respond to an expression of dissatisfaction or a letter of complaint. This can often lead to an additional issue of complaint being made relating to inadequate complaint handling by the practitioner/firm. We understand that not all complaints can be resolved at first tier and may end up as a formal complaint. When that happens, engagement in the SLCC’s complaints process is just as important as engagement with the client. Not only can engagement result in resolution of the complaint without the need for a formal determination, it is also a factor which is taken into account by the SLCC where cases are upheld.
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"Engaging with the complainer should be the first step in dealing effectively with the complaint."
How we consider practitioner engagement in the complaints process
The Determination Committee may when setting the complaint levy take into account the following: I
Whether the practitioner followed their own complaints handling policy/procedures and timescales and adhered to accepted best practice, including the SLCC best practice guide;
II
Timescales more generally and the thoroughness, promptness and completeness of the investigation and response by the practitioner both in their internal handling of the complaint and in dealings with the SLCC;
III
Whether the practitioner made the complainer aware that if they remained dissatisfied with their internal handling of the complaint, contact could be made with the SLCC;
IV
Whether the practitioner openly accepted any failure in their service and offered a reasonable settlement;Â Â
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How we consider practitioner engagement in the complaints process
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v
Whether new issues or justifications were raised by the practitioner only at the stage of the complaint being with the SLCC, which could reasonably have been provided to the complainer at an earlier point; and
VI
Any other failings the Committee identified in the internal handling of the complaint, and in dealings with the SLCC.
2. explain The way that you communicate with the complainer is the second key step in the complaint handling process. This applies equally to information you provide about how a complaint will be dealt with and also to how you communicate your findings following a complaint’s investigation. We sometimes see complaint responses that include inappropriate comments or are dismissive of the concerns raised. The purpose of having a dedicated Client Relations Manager and complaints handling procedure is to try to resolve issues, not inflame matters further.
"Even if you disagree with the complaint, responses should be measured and impartial."
The language and tone of communicating should reflect this intention. Even if you disagree with the complaint, responses should be measured and impartial.
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case example Mr S complained that the firm failed to respond to his letter of complaint “when needed”. The firm acknowledged Mr S’s complaint and advised that they would respond in 3 weeks. When the timescale for a response approached, the firm contacted Mr S to apologise that they would not meet the timescale and required a further 3 weeks before they could reply to his complaint in full. The firm thereafter provided a full response to Mr S and apologised for the delay specifically stating that it was due to “pressure of business and illness”. The SLCC acknowledged that there had been a delay in responding to the complaint, but that Mr S had been kept updated regarding the delay. The SLCC is of the view that Mr S’s letter of complaint was lengthy and required a detailed response, which he was provided with. In the view of the SLCC, whilst there was a delay in responding to the complaint, a period of 6 weeks in responding was not unreasonable in the circumstances. As a result, the SLCC determined that the issue was totally without merit.
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"... a period of six weeks in responding was not unreasonable."
3. respond Once you have investigated the complaint it is important that you communicate your conclusions clearly and timeously to the complainer. Â This is equally important whether your conclusion is that the complaint is justified or not. Once you have made your conclusions on the complaint clear, if a resolution cannot be reached and the complainer remains dissatisfied, you must signpost them to the SLCC.
"If a resolution cannot be reached and the complainer remains dissatisfied, you must signpost them to the SLCC."
In addition to responding to complainers, it is also important to respond to the SLCC. Under the Act, the SLCC is entitled to examine your business file and request explanations for the purpose of its investigation and determination. Â
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case example The Committee noted that the firm did not respond to the complainer’s initial complaint, to the intimation of the complaint by the SLCC or to the recommendations in the Investigation Report. The Committee also considered that there was more than one issue upheld. After taking into account all the foregoing factors, the Committee decided that a levy of £1700 was appropriate in this complaint.
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"...the Committee decided that a levy of ÂŁ1,700 was appropriate."
section 40 guidance
1.7 responding
1.7.1
best practice guidance
Responding to complaints Where a complaint has been received (whether that is orally or in writing), a formal response (preferably in writing to avoid potential disputes over what was discussed orally) should be provided to the complainer within the firm’s published timescales. If any attempt to resolve the complaint fails, or if the practitioner / Client Relations Manager considers that the complaint is without merit or has been unreasonably made, the position should be made clear to the complainer and the complainer should be advised that this is the practitioner’s final response.
1.7.2
Responding to third party complaints Where a practitioner / Client Relations Manager has received a third party complaint, a formal response, preferably in writing, should be provided within the firm’s published timescales. Consideration should be given as to the extent of the response, ensuring there are no breaches of client confidentiality. Seek consent from the client prior to responding. Practitioners / Client Relations Managers should always respond to a complaint, even if this is simply to say that they are unable to provide a full response as they do not have permission from their client. In these circumstances, the practitioner / Client Relations Manager should confirm that no further correspondence will be entered into.
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section 40 guidance
1.7 responding
1.7.3
Signposting Practitioners must ensure that clients, or others, who may wish to express dissatisfaction with a practitioner or firm, are advised of the SLCC as the gateway for complaints at an appropriate time. This should, but not exclusively, occur at the conclusion of 1st tier investigations.
1.7.4
Responding to the SLCC Where a complaint has been received by the SLCC, the practitioner/ Client Relations Manager should cooperate and respond to requests for information within requested timeframes. Where timeframes cannot be met, reasonable time extensions should be agreed with the SLCC.
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best practice guidance
Version 2.0, published December 2018 Scottish Legal Complaints Commission The Stamp Office 10-14 Waterloo Place EDINBURGH EH1 3EG Phone: 0131 201 2130 Fax: 0131 201 2131 Email: enquiries@scottishlegalcomplaints.org.uk @slcccomplaints