The Ombudsman's Corner

The Ombudsman’s Corner: May 2022

When we recently updated our Scheme Rules, we made an amendment to Section 2 – “Who can complain about what”, to include a new section which clarifies that a complaint can be brought to us where the service has been provided to an estate of a person who is deceased where the complainant is a beneficiary of that estate.

This was not a change to what we are able to look at within our scheme – we have always dealt with beneficiary complaints, but rather we wanted to be clear to both service providers and complainants that we can look at these complaints.

Of course, unless the beneficiary is also an executor of the estate, they will not be a client of the complained about service provider. However, this is not a requirement within our scheme. The test we apply is whether the complainant has received a service from the service provider.

We have received several challenges from service providers over recent years regarding our jurisdiction to investigate complaints in circumstances where the complainant is not a client of the firm, including beneficiary complaints. I therefore want to set out our approach to dealing with complaints from non-clients.

In some cases, we have upheld challenges from service providers – for example, if the defendant in a criminal matter wants to complain about the prosecution barrister at trial, we would not look at that as the service was not in that case provided to them. However, we can and do investigate complaints from non-clients of a service provider, the most common of which is from a beneficiary of a will or trust.

The confusion that some service providers have had regarding our ability to look at non client complaints is understandable when the regulators’ code of conduct document is examined. The Solicitors Regulation Authority code of conduct says at s.8.4 firms must “ensure that when clients have made a complaint to you, if this has not been resolved to the client’s satisfaction within 8 weeks following the making of a complaint they are informed, in writing, of […] any right they have to complain to the Legal Ombudsman”.

Similarly, section 6.4 of the Council for Licenced Conveyer’s code of conduct states that “Handling of complaints takes proper account of Clients’ individual needs”. Both regulators make it clear that their regulated firms need to respond to clients’ complaints, and we have regularly seen service providers inferring from this that, when a complaint is received from a non-client, there is no obligation on them to provide a response to it.

The role of the Legal Ombudsman is to determine whether the service provided by a service provider in relation to a complaint was reasonable, and if this was not the case was there detriment arising from the service failing, and in cases where there has been detriment to a complainant arising from unreasonable service determine reasonable redress to put the complainant back in the position that they would have been in had the poor service not been provided, insofar as we are able to do so. For us, there is no requirement for the complainant to be a client of the service provider they are complaining about, just that they received a service.

We regularly see cases where a service provider has provided what we determine to be poor service in dealing with probate matters where a service provider has incurred unreasonable delays in dealing with the estate, which in turn causes detriment to beneficiaries who understandably want both closure on the matter and to receive their entitlement under the will. We can and do want to determine complaints arising from this situation.

Another common complaint scenario we see is in relation to re-mortgage applications, where a service provider is instructed by a lender to act for them in the legal aspects of the loan. I recently dealt with a case where the borrower had complained that the firm acting for the lender had failed to progress the re-mortgage, resulting in a financial loss. The firm challenged our involvement in the complaint, explaining that the complainant was not, at any point, their client, rather they were instructed by the lender, who was the client and responsible for the firm’s fees, and therefore at no stage did they provide a legal service to the complainant.

In my response to the firm’s challenge, I set out our approach in dealing with such matters. Whilst I accepted that the lender was the client in this case, rather than the complainant, I explained that in progressing the re-mortgage application, any delay or errors on the part of the firm could affect the outcome of the mortgage application which could in turn result in detriment to the complainant.

As our rules do not require the complainant to be a client in the strict sense, simply that they have been the recipient of a service by an authorised person, I was therefore unable to uphold the firm’s challenge, and the investigation proceeded.

This is the approach that we always apply – provided that the complainant has received a service from the service provider, we can determine their complaint, irrespective of whether they have been a client of the service provider. Our advice to service providers therefore is always to respond to complaints they receive from non- clients in circumstances where it could be deemed that they had provided a service to that complainant.

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