On 1 April 2023, changes to the Legal Ombudsman’s Scheme Rules are due to go live. This is the first comprehensive redrawing of the rules since 2012, and included is a change to Scheme Rule 4: a decrease in the time allowed for clients to make complaints.
Currently, a complainant can bring a complaint within 6 years of an alleged mistake, or within three years of discovering an issue. These time limits are decreasing to one year for all new cases which a complainant asks the Legal Ombudsman to investigate after 1 April 2023. The time limit rule requiring complainants to bring their complaint to the Ombudsman within six months of the date of the final complaint response from the service provider remains unchanged.
The change reflects the desire to reduce waiting times, increase efficiency and clear the mounting backlog of complaints. The new time limits for referring a complaint to the Legal Ombudsman will be no later than:
- One year from the date of the act or omission being complained about; or
- One year from the date when the complainant should have realised that there was cause for complaint.
The Legal Ombudsman has faced some criticism in response to this proposal with the Bar Standards Board arguing that the change is discouraging to complainants raising issues, and shorter timescales put more pressure on the complainant and investigators.
While this change does read as quite drastic, the Legal Ombudsman has retained and enhanced the ability to apply Rule 4.7. This allows them to exercise discretion to extend this one year time limit for specific circumstances if, on the evidence, it is fair and reasonable to do so. This ensures that although the time limit is reduced, the level of discretion to accept an out of time complaint is being increased from the previous “exceptional circumstances”.
The communication to clients of the change to time limits is key, and information to clients must be amended from 1 April 2023 to reflect the new time limits. Changes will include:
- information published on websites.
- any signposting or guidance documents which may be used to outline when a complaint can be taken to the Ombudsman.
- client care letters
- letters sent as part of your complaints process including that advising complainants of their right to ask the Legal Ombudsman to review the complaint.
The Legal Ombudsman ensure that information and guidance on time limits is clear and accessible through all of its customer channels. The circumstances in which discretion can be exercised and how complainant’s can request that it be exercised will also be published on the Ombudsman’s website.
It is essential that solicitors, firms, barristers, and chambers update their internal complaints processes to reflect the change and ideally, they should communicate it to their clients in advance of 1 April 2023 warning of the changes coming and then again on 1 April 2023 once the change is introduced.
- The Legal Ombudsman is also taking the opportunity to revise Scheme Rule 5.7, with 3 key changes: The introduction of the word “significant” in Rule 5.7(b), allowing an Ombudsman to consider whether it is a proportionate use of resources and time to investigate a complaint where the detriment to the complaint is not significant. Under the current wording, a complaint can only be dismissed under this rule if there has been no loss or detriment. The updated wording provides for cases to be dismissed if the loss, detriment, or impact is deemed minor enough that it would be disproportionate to conduct a full investigation.
- The introduction of Rule 5.7(p) which provides the Ombudsman with the opportunity to consider if a complaint should be dismissed on the basis that the size and complexity means that it would be disproportionate for it to be investigated.
- The introduction of Rule 5.7(q), ensuring new issues cannot be added to an ongoing investigation if they are already known to the complainant at the time the investigation commenced, but were not included within the original complaint.
The last major revision is to Rule 5.19, enabling the Ombudsman to conclude that a final decision is not needed on a case if no substantive issues have been raised in response to the investigator’s findings or remedy. The complaint would be deemed to have been resolved by the investigator’s findings.
If you would like to discuss support with your complaints process, do reach out to the team at Beyond Compliance at hello@beyond-compliance.co.uk or call us on 0121 288 5227.
