Open and shrewd

Read our Chief Ombudsman, Adam Sampson's blog.

Publish and be damned

30 November

First of the consultation sessions about our approach to publishing. I say first – we had planned an event in Newcastle but the snow gods had forced its cancellation. And although Parliament Square was covered in a light dusting of slush (what had been snow had rapidly been churned into oblivion by the boots of riot police awaiting the planned student protests), it was not enough to deter the hardy souls who had gathered in Committee Room 2 of the House of Lords to help us think through what is one of the trickier of our set-up issues.

Not tricky because there is or was any huge disagreement about what our publications scheme should be aiming to do. Despite the fact that the room held lawyers, consumers, journalists, policymakers and other Ombudsman schemes – people in other words who could be guaranteed to disagree - there was broad unanimity about the principles we should adopt. Everyone understood that an Ombudsman scheme had to be built on transparency and all were eager to see consumers and lawyers alike given as much information as possible about what – and who – was and wasn't working well in the system. LeO's role in feeding back trends and practice to the profession has massive support.

No: the issue where there was disagreement - hot, impassioned and ever so slightly longwinded disagreement – was on the question of naming. Not naming complainants, of course – the Act specifically forbids us doing so even if we wanted to (which we do not). The debate is about whether and when we will ever publish the name of the lawyers and firms about whom the complaint was raised.

And here there are competing pressures. On the one hand, if we want consumers to be able to make informed choices about lawyers, and if we hold information about the number of complaints made against them (and especially if we know that some of those complaints have some substance) it is arguably perverse not to tell them.

On the other, a single complaint – indeed, a single instance of inadequate service – says little about the lawyers overall competence and commitment. And we are very nervous about the prospect that lawyers may refuse to take on customers whom they think may prove difficult for fear of the publicity which may attend a finding by the Ombudsman.

Which leaves us with a question: what naming scheme informs without creating adverse consequences? That there was no agreement in the room is scarcely a surprise. As everyone there acknowledged: there is no right answer. Paradoxically, that left me feeling curiously comforted. The notion that we all know that any proposal will be imperfect may provide a consensus on which we can start to build.



Some are more equal than others

18 November

Irritating.

On Monday, the OLC signed off our draft statement of equalities objectives and priorities ready for the process of consultation which, as a public body, we are obliged to undertake. The draft, which had been months in preparation, was an attempt to make sense of the recent changes in the Equalities Act, balancing our legal obligation to promote diversity and equality with our desire also to further human rights. Fortunately, we are aided in the process by the fact that one of the Ombudsman team, Susie Uppal, had come to us from the Equalities and Human Rights Commission and the fact that our Chair, Liz France, in her former role as Information Commissioner was closely involved in the early days of the Human Rights Act.

That was on Monday. On Wednesday, Theresa May announced it had all changed. Suddenly, it seems, the planned but as yet unenacted duty contained in the Act for public authorities to give greater priority to combating "socio-economic inequality" is being characterised as "socialism in one clause". The measure is to be reviewed, which the papers are reporting as it having been scrapped.

So where does this leave us? As a public body, we are clearly affected. But how? As a new organisation trying to design systems for the next five years and beyond, how are we supposed to approach the issue?

This is not merely a theoretical concern. I am not worried about compliance: compliance – both apparent and legal – is hurdle which we should be easily clearing. I am more worried about how a body like us with a clear commitment to the values of equality and human rights can make sense of what we are being asked to do by Government.

Fortunately, we are clear that we want to go further than the law requires. Statute imposes on us a positive duty to ensure that we are offering a decent service to people who are from different ethnicities or religions, for example. But we also have a strong ethical commitment to compensate for the fact that some people who might want to use our services will have difficulty in doing so because they are too poor or socially excluded to do so. We know from research that the lower down the socioeconomic scale people are, the less they feel able to challenge decisions made about them. Other Ombudsman services have for years been grappling with the fact that the profile of the people who complain to them is inexorably skewed towards the middle aged and middle class. Yet I doubt that it is the middle aged and middle class that have most to complain about from the service they receive from lawyers.

Nevertheless, coming on top of the news earlier in the week about the future of legal aid, the timing of this announcement is particularly striking. We are now poised to make major cuts in the funding of legal services for those who cannot afford to pay for them themselves. Now more than ever, if we want to track the impact on the quality of services offered to poorer people in this country, we need to make a special effort to ensure that they do actually complain if those services get worse rather than simply suffer in silence.



Hard evidence

16 November

So now we know. Yesterday's announcement that Government intends to cut back hard on legal aid spending is scarcely a surprise. Whichever party had won the election, it was inevitable that an axe would be taken to legal aid. And no Lord Chancellor could achieve the level of cuts to MoJ spending demanded by Treasury without looking to the two big ticket items under his control: prisons and legal aid.

The question is: what will the proposed cuts mean for legal services and those who (want to) use them? The one thing you won't get is the Legal Ombudsman rushing headlong to provide an answer. When I was interviewed by one TV reporter a few weeks ago about our launch, she spent some time during our encounter fruitlessly trying to get me to predict that cuts to legal aid would automatically lead to poorer service for consumers and a greater number of complaints. Whereas in my previous role in Shelter, I was paid to speculate and, as an employer of some 35 solicitors, I had a locus to do so, as an Ombudsman my role is to report rather than anticipate the evidence.

So I am not going to join my voice to the Greek chorus of Cassandras predicting disaster. Not that they are necessarily wrong: for those of you know your mythology, Cassandra's tragedy was not that she was wrong about the future but that her predictions were never believed. And it does not take an unerring gift of prophecy to identify that there is a risk that the restrictions on legal aid will diminish not just access to legal services but the quality of the services provided.

But, as I say, it is an Ombudsman's job not to speak until he has seen evidence that a problem exists. However, if he does see evidence that there is such a problem, then he has not just the power but the duty to speak. Sure – an Ombudsman's primary role is to resolve individual complaints, to do individual justice. But he also has a wider and equally important role: to reflect back to consumers, the profession, Government and the wider community information about what is going wrong in a particular area of policy and how those mistakes can be avoided.

Those reflections will not necessarily be voiced in a campaigning style; the Legal Ombudsman is an Ombudsman scheme, not a pressure group. But they will be voiced – privately and publicly – if and when the evidence is available. The debate on legal aid which has just begun is likely to be a lengthy one. We may not join it for some time but, when and if we do, our contribution will be based on what we know has happened, not on what we think might happen.

Click here to read the Government announcements about legal aid reform.



Entity vs Activity

9 November

Yesterday, we had daily cleaning. And tomorrow morning, we shall have what to do after firing. But today, today, we have naming of parts.

Whenever you move sectors – and as a cursory look at my CV shows, in my case that is every five or six years – you do more than change your job. Your contact book, your diary, all your professional geography changes too.

All of those are easily changed. And despite the superficial differences between the sectors, I have always found that most of the issues you have to deal with are very similar. No - the difficult process is not dealing with any of the substance. The difficult process is learning an entire new glossary, a new cant, the new set of acronyms and verbal shorthands which your new colleagues use to communicate quickly with each other and intimidate newcomers.

In my case, learning the new legal language has been relatively easy. Having worked alongside lawyers for years, and being married to one, I had a pretty good grounding in lawyer-speak before I came into post. Of course I get caught out on the specifics (of which there are thousands). But an unexpected ability to understand Latin, I have discovered, gets you an awful long way in the legal world.

What I have been struggling with, though, is fully grasping the intricacies of the developing philosophical debate about the future shape of regulation in the sector. Entity-based regulation was what I understood we were aiming for and, being a bear of simple brain, I had thought that I knew where I was with the concept. If you buy a legal service from a firm or individual who is regulated, you are entitled to the protection which regulation brings you. That seems clear enough.

Trouble is that, as Saturday's debate at the Bar Annual Conference shows, entity-based regulation may not survive the challenge of Alternative Business Structures. Instead, some key players used that event to endorse an alternative model: activity-based regulation. David Edmonds went so far as to echo the Master of the Rolls' conclusion that if the Legal Services Act "does not lead to activity-based regulation, it will have failed".

So, then – entity-based or activity-based? Bluntly, as a new entrant into this world, I have no real idea. What I do know is that whatever genre of regulation we do end up adopting, it has to get it right. A few days ago, we took a call from a man who had gone to see his solicitor to get a will written. He was shown next door and introduced to someone who he was told would take care of the matter. It was only some time later when he realised that in that short walk from one building to the next, he was moving from a regulated to an unregulated environment. Fortunately, in his case, I think there are fair and reasonable grounds to take the case on. But the debate which began on Saturday is about more than just the naming of parts; it is about people's lives.



The first of many

8 November

It's taken longer than I thought but, at last, we've received our first complaint. Actually, that may be misleading: clearly, we've received lots of complaints. No – what I mean is that we've received our first complaint about us.

Obviously, I'm not going to go into details. Suffice it to say that the complaint is from someone unhappy about being told that a case he had submitted to us had been ruled as being well outside jurisdiction: out of time, out of scope and an issue which had been thoroughly investigated by previous complaints bodies (and the courts).

But of course, our complainant has been pursuing this matter for many years now and is not easily persuadable to take no for an answer.

No sooner had our assessor told him of the decision than he had rung his MP, begun invoking the freedom of information process, and threatened judicial review. People may think that Ombudsmen are unaware of how it feels to be the object of a complaint. Far from it – we are likely to be more complained about than anyone.

In this case, his intervention was very positive. There is nothing like getting a complaint to make you look again at your systems and processes.

Very rapidly, we had to acknowledge that we needed to tweak our complaints handling procedure, which we had not previously tested live.

More seriously, it emerged that this case was one of a number of (largely identical) cases to us; all complaints about the same lawyer and arising out of the same incident. The fact that the cases had been submitted by the same individual in different names (he had complained both on his own behalf and as a representative of others) had meant that we had not immediately picked up that they were, in truth, largely the same matter. This is a valuable lesson indeed.

Not that our complainant is going to be happy. Since he had asked us to look again at our decision I wanted to review all the cases myself. Checking around, I found that not only were these complaints too old for us to consider but he had had them investigated by other organisations on many occasions; indeed, the issues were still under consideration by one of our predecessors. My letter telling him we will not be accepting any of the complaints has now gone off and I await the likely response.

Anyone working in a service industry like ours aspires to high levels of customer satisfaction. And sometimes you get indications that you are doing a good job: just on Friday, out of the blue there popped into my inbox a lengthy paean to our effectiveness from a complainant who had just had his case successfully resolved; the lift to staff morale on a cold, winter's afternoon when I pinged it round the office was palpable. Sadly, as an Ombudsman, you also get used to the opposite. And I expect to get far more brickbats than bouquets.



Testing the pipes

3 November

I'm not very good at positivity.

Nearly three weeks in and people are now beginning to ask me with increasing intensity how it is going. In truth, they mean it an opportunity for me to blow the organisational trumpet – a key skill for the Chief Executive. But it is a skill I do not possess. Rather than boast of how successful we have been, I instinctively choose instead to do my best Eeyore impersonation. I lament the fact that disaster has not yet shown itself and condemn us cruelly to an unnecessary period of uncertainty before our inevitable hubris reaps its inevitable reward.

That is my emotional default setting. But when I look at things objectively, I am less sure that disaster will truly strike. As every day passes, the probability gets more like a possibility. The IT has not fallen over, though it has the occasional creak and groan. Our people have not collapsed under the stress or walked out, telling us that we were fools to expect them to cope with dealing with complaints after only six weeks training course. We have not been condemned as charlatans or laughed out of court (or, more likely, into court).

And it is not as if we have had a quiet start. As of the start of the week, we have now passed the 6,000 mark – over 6,000 people have contacted us, albeit including 1,000 who, having listened to our introductory phone message, have decided that we are not the organisation they need. Of the remaining 5,000, the majority (as with other Ombudsman schemes) have not yet complained to their lawyer, a necessary first step before we are able to consider their grievance. Some clearly lie outside our jurisdiction.

But we have also now started full investigations in the Resolution Centre on more than 500 and have already closed some 60 or so files, all of them thus far by informal agreement.

So far, then, so good. Crucially, we are keeping pace with the work, turning around the vast majority of Assessment Centre enquiries within a day or so and not allowing a backlog to build. For an Ombudsman scheme, a sustained backlog is your worst enemy.

And it is early days. Thus far, we have only really tested the front end of our system. Who knows what will happen when the flood of cases reaches some of the remoter parts of our piping.



Blurred at the Edges

1 November

Two weeks in and some of the themes are beginning to emerge. Few real surprises thus far: the spread of cases is – guess what – not dissimilar from what we learned by studying the work of our predecessor bodies. And the levels of demand are holding close to the 100,000 for which we planned.

No – what is I am most struck by is what is different, rather than what is the same. And those differences are not with the outside world: the shape of legal services is not suddenly transformed just because an Ombudsman scheme has now arrived. But it is how the shape which has been given to our new powers reflects the shape of the problems with which we have been set up to deal.

Mostly, the news is good. We've now seen some 4,000 to 5,000 contacts coming through the door. In general, the way we have been set up (and the way we have set ourselves up) seems pretty sensible. On time limits, for example, we are able to negotiate our way reasonably efficiently around eschewing the really ancient matters, which it would be impossible to sort out effectively (when our Chair, Liz France, listened into a call recently, the caller opened by saying "I have been complaining about this for more than four decades"). And we have been accepting into the scheme issues of more recent vintage, where finding a solution is eminently possible.

That said, there are already signs of jurisdictional problems ahead. Chief among these are questions about who comes under my jurisdiction and who does not.

Three recent questions illustrate the difficulties.

In one, a complainant was referred by a solicitor to a will-writing company of which he (the solicitor) was the director. Will-writing is not a restricted activity and the will was written by a lay individual, but was the solicitor's role sufficient to bring it under our ambit? In a second case, an internet divorce company was the subject; staffed by lay people, it nevertheless boasted on its website of that its work was reviewed by an independent panel of solicitors, whom it named.

Third, a firm offering conveyancing to English people wishing to buy or sell property in France spoke of its "dual qualified" staff. But, these staff were not named and the website said that the firm was not regulated by the Solicitors Regulation Authority.

All of these complaints seem worth looking into and all have been accepted into the scheme.

However, in none of these cases is it unequivocably clear that the legal services concerned were being offered by a regulated individual or firm. We are continuing to dig into the circumstances surrounding them just to check that they do, indeed, fall within our jurisdiction. We are a new scheme and the edges of our powers have yet to be tested.

No-one yet knows where those edges are.

But we had better work it out, and quickly. As the pace of legal services reform accelerates, the legal services market is rapidly moving away from a reliance on the high street solicitor. As Friday's Law Society Gazette report of Co-op's plans shows, new players are entering into the market, with very different business models. In this brave new world, being clear from the start about what is and is not within the Ombudsman's scope may not matter much to providers. But it will matter hugely to the customer.