The Ombudsman’s Corner: January 2023

Happy New Year everyone and welcome to the first “Ombudsman’s Corner” of 2023. In the last column, I set out details of the changes we are making to our Scheme Rules on 1st April 2023 with regards to our time limits. This time, I am going to explain how we are changing our rules in relation to what and when we can dismiss a complaint.

Our Scheme Rules give us discretion to either dismiss or discontinue all or part of a complaint that fall within our jurisdiction in certain circumstances. The rules around this are set out in Rule 5.7.

The basic principle is that we can dismiss a complaint, either in whole or part, where there is a “compelling reason” to do so. What we have included in the rule are a list of circumstances where we would dismiss or discontinue it, with the complaint only then being re-opened if certain specified criteria are met.

For example, we may choose to discontinue a complaint where the matter is better off being looked at by a court, but if it then transpires that the court do not consider the substantive issues complained about, we may decide to re-open the complaint and determine them.

It is important to note that we are not giving ourselves additional powers to dismiss or discontinue in the new rules, we are simply clarifying further “compelling reasons” and making changes to existing rules to assist us making decisions on whether or when to dismiss.

Current rules

Rule 5.7 (a) covers circumstances where the complaint “does not have any reasonable prospects of success or is frivolous or vexatious”. In the new rules we have removed “frivolous or vexatious” and made it a separate rule. Our experience is that where we dismiss a complaint under this rule, we generally want to do so as the case has no reasonable prospects, but we then have to explain that we do not consider the matter to be frivolous or vexatious, as these are not linked, which can cause upset and frustration to complainants.

Rule 5.7 (b) says that we can dismiss if “the complainant has not suffered (and is unlikely to suffer) financial loss, distress, inconvenience or other detriment”. We are changing this to “significant financial loss, distress, inconvenience or detriment”.

The intention is that we will apply this in circumstances where the level of alleged detriment is so minor that it would not be an appropriate use of our time putting the case through our process.

For example, we had a complaint where the only issue was that the firm had failed to empty a litter bin in the meeting room in which they held a meeting with the client – he referred to “rotting apple cores” which he found “disrespectful” and wanted compensation for. Here, the level of alleged detriment was so minor that it was not an appropriate use of our time and resource to investigate.

Rule 5.7 (c) allows us to dismiss a complaint where “the authorised person has already offered fair and reasonable redress in relation to the circumstances alleged by the complainant and the offer is still open for acceptance”.

We have expanded this to include offers already made and accepted by the complainant at first tier – we have always dismissed these complaints under 5.7 (n) as a “compelling reason” but this sets out the principle clearly.

New rules

Rule 5.7 (p) will allow us to dismiss or discontinue a complaint where “it would not be a proportionate use of the ombudsman’s time to investigate the complaint, due to the likely impact or due to its complexity, the amount of evidence provided, or due to the conduct of the complainant during the investigation”.

This rule is intended to be used in the very rare occurrence where the matter is so complex, there are so many complaints or the amount of evidence is so large (for example, bundles of 10,000+ pages have been received in the past) that again it is not an appropriate use of our resource.

The Legal Services Act says our investigations should be undertaken “quickly and with minimal formality” and 5.7(p) applies where the size of the complaint prevents us doing this.

It is also intended to be used in exceptionally rare cases where the complainant’s behaviour is such that it prevents us from undertaking an appropriate investigation. In one case we were receiving multiple telephone and email contacts per day which prevented effective investigation into the complaint. We would apply this rule after warning the complainant about their behaviour and asking them to change it.

Rule 5.7 (q) is another new rule which allows discretion to dismiss or discontinue where there has been “undue delay in the complainant raising the complaint”.

We would look to dismiss under this rule if the complainant has brought a subsequent complaint issue or issues to an ongoing investigation if they should reasonably have known about at the time that the investigation was accepted. If these have been raised at first tier but the complainant elects not to progress them with us, it may not be fair to then introduce them at a late stage for investigation, so we may dismiss them.

The changes provide extra clarity for both service users and service providers as to the reasons that we may choose to dismiss or discontinue part of a complaint.

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