When I speak to service providers I often get asked to advise them on what their approach should be if, having received a complaint from a client, they find that things had gone wrong and they have to uphold the complaint. How should they then put things right?
At the Legal Ombudsman our approach, when we determine that things have gone wrong, is to try and 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.
To achieve this, we may decide to apply one or more of a number of different remedies. We may direct the service provider to pay an amount to the complainant if we find that they have lost it as a direct consequence of their service failings, or we may direct a service provider to undertake further work to put matters right at no cost to the complainant. We may choose to direct a refund of some or all of the costs paid to the service provider, or pay the complainant a sum of compensation in recognition of the fact that things had gone wrong.
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 the client for any upset, frustration or inconvenience caused.
If the complaint is then referred to the Legal Ombudsman and we find that 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 would not undertake an investigation on that complaint, as it would not be fair on the service provider to do so. We are able to 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.
So how do we determine whether the offer is reasonable or not? What we do is 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 has been offered to the client. It is important to note that at this stage, we don’t ask for or review any evidence. In order to form our view, we:
- list anything that could be considered a detriment, taking into account any detriment the complainant themselves has alleged;
- consider how, if we upheld the complaint in exactly those terms, what an appropriate remedy would be; and then
- then turn to what the service provider has done or offered and compare it to that
If, having done this, the service provider’s offer is in line with or is in excess of what we would have directed if all complaints were upheld, then we will look to dismiss the complaint.
Quite often, the appropriate remedy would be a payment of compensation, and we get asked how much service providers should pay the complainant for us to determine that the offer was reasonable. Our approach to remedies is set out in the document “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 has been serious and took place over a long period to the extent that it has 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 however, and if a service provider recognises that things have gone wrong and wants to take steps to put things right and offer reasonable redress but is unsure what this would be, we would encourage them to contact our Technical Advice email service at [email protected], setting out the complaints and what their proposals are. We can then provide advice whether, in principle, we would consider any offer made to be reasonable. Emails sent to our Technical Advice email address will be responded to in five working days, so you don’t need to worry about it holding up your complaints handling process.
Jason Chapman, Ombudsman at LeO