News focus: Legal ombudsman - a rebalancing act

There is no dressing up the proposed changes announced by the legal ombudsman earlier this month which could allow the complaints handler to dispose of cases pre-investigation and cut the time limit for making complaints from six years to one.

With a remaining backlog of around 6,000 unopened cases, and without such changes, the argument goes, the service will continue to be bogged down by historical complaints that are hard to investigate and costly to resolve. Based on cases brought in the past 12 months, current experience suggests that reducing the time limit to one year would cut the backlog by 30%.

The ombudsman is also proposing to enable its staff to dismiss a complaint without the need to first accept that case for investigation, subject to specific criteria. Cases could be dismissed mid-investigation if a reasonable revised offer is made by a law firm to settle. The ombudsman would also be able to conclude that a final decision is not needed on a case if no substantive issues have been raised.

Chief ombudsman Paul McFadden does not deny that consumers will feel less protected by the proposed reforms, but he insists they will still get the redress they seek.

‘This is not about denying access or minimising service, it is about getting outcomes as quickly as possible,’ McFadden tells the Gazette. ‘It is in no one’s interests to go through a detailed investigation process and get to an outcome you could have got to at an earlier stage. What we’re proposing is very much in line with where those other [ombudsman] schemes are.’

There is evidence to suggest that exhaustive investigations achieve similar results to those resolved quickly. Around 40% of cases go to an ombudsman decision but the organisation’s research shows that 80-85% of those outcomes would have been the same without an investigator.

Elisabeth Davies, chair of the Office for Legal Complaints, was criticised in some quarters for her assertion that the proposals were not designed to ‘close doors’ to people with a grievance against their lawyer. But the organisation insists that current rules do not afford the flexibility to reach ‘minimum formality’ in the process and are hampering efforts to provide a decent service.

'It is in no one’s interests to go through a detailed investigation process and get to an outcome you could have got to at an earlier stage. What we’re proposing is very much in line with where those other [ombudsman] schemes are'

Paul McFadden, chief ombudsman

McFadden says in an ‘ideal world’ the six-year limit would remain – and there will be exceptions to the one-year rule – but he stresses the need to find a balance. ‘The longer you go back in years the more difficult it becomes. This is about providing an appropriate, proportionate redress service for all. That means for some people it is not proportionate for their cases to go through the whole process.’

After a number of years where delays and staff attrition have plagued the ombudsman service, a noticeable streak of optimism is currently running through the organisation.

A recruitment drive run towards the end of last year attracted 900 applicants, of which 40 new starters will join from next month. The extra numbers are beyond what was initially required, to take account of any staff leaving over the coming months.

The extra staff mean that, for the moment, plans to take on agency workers are on the back-burner. But the next stage in bringing down the backlog could still lie outside the organisation. McFadden and his fellow members of the executive will meet with the Ministry of Justice in the spring to seek the go-ahead to make a block of similar cases and send them to specialist investigators for assessment, before returning to the ombudsman for decisions.

McFadden does not promise the change will be a silver bullet but predicts it will be a ‘real tipping point towards being sustainable’.

He adds: ‘What you will see in the [forthcoming] business plan is to get that [backlog] down to a working level. Over the course of this year in Q1 it will start to reduce and [get] to half this year and then to 600-1,000.

‘It is ambitious but credible. We have tried to break down clearly where those numbers are going to come from. The rebalancing we have done this year to early resolution is something we are going to continue. [Around 1,000 cases in the last year have been resolved early].

‘It is about the right outcome at the right point. You are not there to give what [people] want all the time, you are there to get to the right answer.’