The Ombudsman’s Corner: 16th December 2022

In my last column, I explained how and why our Scheme Rules are changing on 1st April 2023, setting out the main changes – our time limits, our discretion to dismiss or discontinue complaints which are within our jurisdiction in certain circumstances, and the introduction of discretion to decline to pass a complaint onto an ombudsman for a formal final decision following an investigator case decision if the complainant does not provide material reasons why it would be fair and appropriate to do so.

What I want to do over the next three columns is explain how we intend to apply our new rules from 1st April 2023, taking each major change in turn. This month, I want to set out how we intend to apply our new rules regarding time limits.

Anyone who took an interest in the recent case of Belsner v CAM Legal Services in the Court of Appeal will have seen that the Legal Ombudsman was cited (correctly in my view) as being the appropriate forum to determine most disputes about costs between service providers and their clients, but Counsel for both sides tried to clarify our current time limits for the court had some difficulty in doing so. I think it is worth therefore setting out what our time limits are currently and what we are changing to.

At the present time, complainants can complain about issues arising from the service provided by their service provider, providing that the act or omission occurred in the last six years. However, if the act or omission occurred more than six years ago, then they are still able to complain if their date of awareness of the issue could be placed in the last three years. An example of this being where a client purchased a property, say, 10 years ago and only became aware of an issue arising during the purchase when they come to sell the property much later. If the client’s date of knowledge of the issue could be determined to be in the past three years, we can investigate it.

However, we would expect a client to bring their complaint to us within six months of the date of the final response from the service provider to their formal complaint, providing that the service provider informed the client of the relevant signposting information, telling them how and when to contact us.

We are not changing the requirement for a client to bring their complaint to us within six months of the date of the final response – that remains the same, but we are changing the time limits for both act or omission and date of awareness from six years and three years to one year from act or omission and one year from date of awareness. The two dates interact in the same way – you can complain about something that happened more than a year ago providing you only became aware of it in the past year and referred the matter to us within six months of the date of the final complaint response.

One issue arising from this change is how we deal with complaints where the service failing occurred over a period rather than being a “one off” act or omission such as failure to respond to an email or letter on a certain date. Delay, for example, can be an issue persisting over months and years, particularly in longer retainers such as probate or litigation matters. Under the new time limits it is possible that some of the service issues may be out of time. However, the approach we are taking is that in these circumstances, providing the period of delay or service failing extends into the new time period of the last 12 months, then we will accept it.

It is a common misconception that complaints that fall outside of our time limits are out of our jurisdiction to investigate – they are not, as we have always had discretion to accept them. However, the test for this has always been a high one – that of exceptional circumstances. In recognition of the fact that we are reducing our time limits which mean that there will be a reduction in the number of complaints that we receive which are in time, we are widening our discretion to accept out of time complaints where it is fair and reasonable to do so.

This will include complaints we receive after 1st April 2023 where, due to the timing of the complaint, the client will have been advised of the previous time limits in the client care letter and complaints handling procedure rather than our revised time limits. It is fair to accept complaints in those circumstances. We are also going to carefully consider complaints that are brought out of time where the client is vulnerable or has reasonable reasons for not bringing their complaint in time, such as due to their health or personal circumstances.

The intention is not to exclude people from bringing complaints to us, but rather to ensure that we are able to reasonably determine complaints we receive, which can be problematic for us where the matter took place years ago.

As this is my last column of the year, I want to take this opportunity to wish you all a very Merry Christmas and a Happy New Year. See you all again in 2023!