Ombudsman's casebook

A monthly column of examples from the casebook of the Legal Services Ombudsman

Disability inabilityMs G instructed solicitors in connection with a benefits claim.

What she was seeking was disability premium backdated as far as possible, and probably for the whole of 1993.

What she finally received was the payment of disability premium from October 1994 which, some four years after her original instructions, was backdated only to December 1993.

Understandably dismayed by this result, Ms G complained to the Office for the Supervision of Solicitors in the belief that the solicitors scarcely understood the benefits system, failed to keep her informed of what was happening and took an inordinate amount of time to process what should have been a simple claim.

The OSS, however, came to the conclusion that the solicitors could not be blamed for the disappointing decision of the Benefits Agency nor for the amount of time it had taken to get to a final decision.It was clear to the ombudsman that not only had the solicitors misunderstood Ms G's benefit situation, but that the OSS had misunderstood it too, occasionally mentioning benefits that did not even exist.

It was not difficult to see why Ms G believed that her solicitors had been worse than useless, because in the end it was far from clear that they had played any positive part in her obtaining the limited benefit finally awarded by the Benefits Agency.

The Ombudsman could not avoid the suspicion that this was a case of a firm of solicitors dabbling in an area of work for which they were ill-equipped, and then of the OSS merely reinforcing the prevailing ignorance in the mistaken belief that the solicitors must have had at least some idea of what they were talking about.

The ombudsman recommended that the OSS reconsider.

Client care camouflageMr D instructed a firm of solicitors in connection with a contractual claim against a property developer.

It was not a good sign that the property developer qualified for legal aid.

Mr D complained that he had at no stage been warned that, even if he won, he might not recover all his own costs, especially if the defendant was legally aided.

The solicitors were able to produce a standard client care letter that set out their potential charges.

Impressed by this enlightened gesture, the OSS accepted that the solicitors had discharged their obligation to Mr D.

In fact, thought the OSS, since Mr D was medically qualified and had from time to time given evidence as an expert witness, they had arguably gone beyond the call of duty: as a professional man, Mr D could be expected to look after himself.The ombudsman sympathised with Mr D's plight.

The client care letter was simply not careful enough to warn about the risks of not recovering costs.

Just because Mr D had actually set foot in a courtroom did not mean that his solicitors could assume that he was familiar with the operation of the legal aid system and alert to the potential impact of a legally aided opponent upon the outcome of his own case.

While it was no doubt legitimate for the OSS to take into account the status and experience of a client when assessing whether the costs information provided was appropriate, they had signally failed to do so in this instance, instead being over-impressed by the facade of a client care letter and a vague reference to the relevant costs informationget-out clause.

The ombudsman recommended that the OSS reconsider.