The Ombudsman’s Corner: January 2024

Our approach to offers made at first tier

When a consumer first brings a complaint to us, one of the first thing we do is to establish whether the service provider has made an offer to resolve it during their own complaints procedure.

If this is the case, and we think the service provider’s offer is reasonable in the circumstances and remains open for acceptance – or indeed has already been accepted by the client – then we wouldn’t investigate the complaint. We can make this decision under 5.7 (c) of our Scheme Rules, which sets out that we can dismiss a complaint where we consider that the service provider have offered a fair and reasonable remedy if it remains open for acceptance.

But what is a reasonable offer? Our approach, when things have gone wrong, is to put the complainant back in the position that they would have been in had the service been reasonable, insofar as we are able to do so.

Our advice to service providers is to take the same approach when dealing with complaints where things have gone wrong. Try and put things right – perhaps offer a refund or discount off the costs billed to the client, or offer a reasonable sum to compensate them for any upset, frustration or inconvenience caused.

So how do we determine whether the offer is reasonable or not? We to look at the complaints raised and consider what we would direct to put matters right if we were to uphold them – and then compare that to what the service provider has offered to the client. It is important to note that at this stage, we don’t ask for or review any evidence.

To form our view, we first list anything that could be considered a detriment, taking into account any detriment the complainant themselves has said they’ve experienced. We then consider what an appropriate remedy would be if we upheld the complaint in exactly those terms. And then we turn to what the service provider has done or offered, and compare it to what we would award in the circumstances.

If the service provider’s offer is in line with or more than what we would have directed if all complaints were upheld, we are likely to dismiss the complaint.

Quite often, the appropriate remedy would be a payment of compensation. Service providers sometimes ask us how much they’d need to pay for us to decide that the offer was reasonable. This will of course depend on the individual circumstances. Our approach to remedies is set out in ‘Our approach to putting things right’, which can be found on our website www.legalombudsman.org.uk and which sets out our rationale when awarding compensation.

We have three levels of compensation – ‘modest’, which is between £50 and £250, ‘significant’ which is between £250 and £750, and ‘exceptional’ which is for sums over £750. We would make an award in the modest category where the impact was minor and short lived and no longer exists: for example, a failure to respond to a request for an update or a small delay in dealing with a matter. A significant award would be directed where the impact was serious but not permanent: for example, where the client has had to repeatedly chase the service provider for updates, or were the impact was exacerbated by poor complaints handling, or where the poor service took place over a long period but was then resolved.

We would only direct an award in our exceptional category in circumstances where we determined that the effects on the client had been serious and took place over a long period, to the extent it had a serious impact on the client’s wellbeing or life. For example, where there has been avoidable exposure to particularly stressful situations or financial liabilities.

As an ombudsman, I appreciate that it is sometimes difficult for a service provider to decide on what an appropriate remedy might be. We are here to help – and if you do investigate a complaint and find that things have gone wrong, and you want to take steps to put things right but aren’t sure what this should look like, please contact our Technical Advice service at technical.advice@legalombudsman.org.uk.

We can then provide advice about whether, in principle, we would consider the proposed offer to be reasonable, or suggest an alternative. We’ll respond within five working days, so this shouldn’t hold up your complaints handling process, and it may lead to the complaint resolving without our involvement.