Open and shrewd

Read our Chief Ombudsman, Adam Sampson's blog.

Knitting at the Guillotine

22 October

Like any new office, our building has a regular scattering of TV screens in reception areas and open spaces. Mostly they are tuned to our performance statistics with the rolling news usually there in the corner as light relief. Moving wallpaper, if you like. But not this week. It cannot just have been in Baskerville House that those screens, so often the focus of purely operational matters, were attracting small gatherings of spectators around them at lunchtime today. Rarely had News 24 garnered such ratings, at least in the central Birmingham area.

Unlike many of our fellow public servants (and, lest we forget, the Legal Ombudsman is a Non-Departmental Public Body, a quango, and our staff, while not civil servants in any conventional sense, are paid for - formally at least – out of the public purse) our audience were not watching in fear for their own jobs. Cuts there will be – the Ministry of Justice's budget is set to drop by 23% – but they will not fall on us. We had that chat some months ago. We are – and always were – safe.

It is a strange confirmation that we do represent value for money - that we are doing for £20m a year a job which used to cost £35m is not a bad place to start. But the more pertinent point is that we are not like other quangos. They cost the taxpayer. We cost the profession.

So we escape. Which is not to say that we're home free.

From a Government perspective (even though our total cost is clawed back from lawyers themselves by a combination of annual levy and case fees) that money formally counts as what is called "Grant in Aid" - public spending to you and me. Along with my two titles Chief Ombudsman and Chief Executive, I also am an Accounting Officer, a formal role entitling me to spend Government money and, less enticingly, opening me up to criticism from the National Audit Office or the Public Accounts Committee if I don't obey the rules. And whatever limit is placed on public expenditure (such as the current pay freeze for public servants) is likely to apply to us too.

And of course we have an obligation back to the profession to spend their money wisely too – it is, after all, their money. In theory, I could spend like water. In practice, I know that I have a moral obligation to account to the profession for every penny I spend, even though there is no legal obligation underpinning this.

That complex web of obligation is a burden. But it does make us safe from the cuts announced today. Which is great. But I cannot really shake off the sense that we are simply a modern day version of Madame Defarge and her cronies, knitting in the shadow of the guillotine while the heads roll around us.



Consumer interest

19 October

Yet another discussion on the consequences for us of the threat to the future of the Legal Services Consumer Panel.

Not that its fate is sealed, you understand; it is only a proposal and certainly not yet a firm decision. Nor would it disappear entirely: given that the Consumer Panel is part of the reformed landscape set out in the Legal Services Act just three years ago and only actually came into existence early last year, immediate closure would be curious indeed. Instead, it would instead be rolled up with similar panels operated by other regulators (OfCom for example) and combined with the rump of Consumer Focus. The whole package would then be housed as part of an expanded Citizens' Advice. So its function would still continue, at least in some form.

So why are we spending so much time worrying at what appears to be an administrative re-organisation? Given that it only has a staff team of two supporting a part-time Board of expert advisers, it is small beer indeed.

But its importance to us goes far beyond its size.

Since I began this job, I have been struck by how easy it has been to get the views of the legal profession about what we should be doing. Indeed, on occasion, it has been hard to avoid getting the views of the legal profession. A quick look at my postbag would reveal how many invitations to legal events I now receive, and, at each of those I do attend, at some point someone from the profession will seek to acquaint me firmly with their view of the world.

But the number of invites I get from consumer groups is small indeed. Consumers do not possess grand halls in Chancery Lane and cannot afford to host receptions with agreeable wines and classy canapés. The consumer lobby – if such a thing can be said to exist, as, in truth consumers have very different interests and very different views – cannot deploy the same heft as the legal establishment.

Which is why the Consumer Panel is so important to us. Whatever happens – and it is not for me to dictate whether the change should be made – I need someone I can talk to who I believe truly represents consumer interests.

Unfortunately, for all its virtues, Citizens' Advice cannot do that. In the end, it (like Shelter, which I used to run) is a big organisation offering services to consumers, which is not the same thing at all. Indeed, given that there is every likelihood that Citizens' Advice will be one of the bodies which will come within our jurisdiction next year (it too employs lawyers and provides legal advice), it would seem bizarre if I were required to consult that same organisation about the views of consumers.

The proposal may not come to anything. But we are sufficiently worried about the consequences to be spending time planning ahead just in case.



Taking Advice

15 October

A long discussion among the Ombudsman team about what we are going to do about legal advice.  

Not getting legal advice, you understand. Not only do we have in-house General Counsel with a call-off contract for specialist advice from a bewildering list of legal luminaries; but we also have a sprinkling of former lawyers working around the organisation. This includes my Deputy Chief Ombudsman, Gary Garland, who has done a bit of judging as well as having been a lawyer, including a spell as Senior United Nations prosecutor at the War Crimes Tribunal at the Hague.  Legal opinions – we got 'em.

No – the discussion was more about the question of how we approach dealing with complaints about the legal advice provided to the complainant. 

This is one of the key distinctions between the new and previous regimes.  In the past, organisations such as the Legal Complaints Service would shy away from examining taking complaints about the quality of legal advice offered.  In our case, the Act makes no mention of any such limitation of our powers: we are set up to look at the service consumers receive from their lawyer and since legal advice is a key – the key – part of that service, examining the quality of that advice is a necessary part of our job.  If the advice was wrong, even if it was delivered with all possible clarity, speed and courtesy, the service received was inadequate.

But that begs a very important question: how can we, a lay organisation, properly assess the quality of advice offered by a trained and experienced lawyer?  Are we really going to substitute our own opinion for theirs?

This conundrum is new to lawyers but very familiar to any of us who have worked in other Ombudsman schemes. 

When I was at the Prisons Ombudsman, we would frequently found ourselves investigating complaints about the professional assessments of prison psychologists or psychiatrists about the dangerousness of individual prisoners.  Most of the time, we found those assessments convincing and seemingly well-founded.  But once in a while, we would come across cases where the assessment was clearly flawed: the psychologist had never actually met the prisoner concerned, or had based their assessment on erroneous information about the index offence, or in one glorious case was writing about entirely the wrong prisoner.  In these cases, we had no difficulty in questioning their professional judgement.

And so it is also with surveyors and investment advisors and dentists. 

Law is all about opinions – any contested case by definition requires there to be at least two competing opinions.  But that does not mean than one cannot form a judgement about whether the advice given by a lawyer is appropriate.  The rule is simple: if the advice given is the sort of advice that any reasonable lawyer with a reasonable knowledge of the case and a reasonable mastery of the relevant law would have given, then we are not going to question it.  But if it is the sort of advice that no reasonable lawyer should have given – if the lawyer has plainly ignored a relevant consideration, deadline or piece of legislation - we will have no hesitation in saying so.  Of course we will check the difficult cases with a specialist.  But in most cases, the sort of mistakes we are talking about will be clear to anyone, lawyer or not.



Just saying no

13 October

One of the things I always wanted from the new organisation was to establish an early reputation for being helpful.  When you are a new service entering into an arena where customer hopes are high, it is all too easy to disappoint.  The last thing you need is to go out with an early, high profile decision which betrays those hopes.

Which is exactly what I may have to do.

Among the slew of complaints which came through the door at the end of last week were a number on a single issue: the manner in which some solicitors' firms are alleged to have been pursuing action against individuals believed to have been filesharing (exchanging copyrighted files of music, films, or even pornography).  According to our correspondents, the tactics being used by these firms are abusive, potentially illegal and poorly targeted, catching the innocent along with the guilty.

Which is precisely the sort of potential injustice (and I stress the word potential – it is vital for me as an Ombudsman to suspend judgement until I have seen the evidence) which we were set up to investigate. 

But we can't.  The legislation which underpins the scheme is clear: we are here to look at the service people receive from their own lawyer, not from someone else's.  You can complain to us if you are unhappy with your divorce lawyer, for example, but not that of your estranged partner.  No matter how serious the allegations, they are not ours to investigate.

Saying no is a core Ombudsman skill.  Key is, wherever possible, to suggest some positive action which can be taken.  In this case, that action lies with the regulator, the Solicitors Regulation Authority, which oversees investigations into allegations of solicitor misconduct.

Saying that we are referring the issues to the SRA and asking to be kept updated about the progress of their investigation may not be the answer the complainants wanted.  But it is the best we can do.

Comment:
"Just a quick note to enquire if you intend to keep Adam's blog closed. I was referred the link by Neil Rose on his site Legal Futures. As someone focused on innovation in legal practice and a non-practising solicitor, I think blogging, despite Andrew Marr's recent comments bloglink, is a great platform to reach out to your target audience. I would though, subject to the normal rules on moderation, expect it to be open for comments. Seems a little odd. Seth Godin I understand but not sure it looks that open for the Ombudsman.."

LeO comment:
We are currently working on opening up Adam's blog for comment. I agree that being able to comment is in line with us being an open organisation. Thanks for writing in, Alison


Open – and closed

8 October 2010

Cases: we got 'em.  Second day over, and already we're close to 1,000 calls, letters and emails.  The former by far outweighing the latter two, thankfully – there are huge advantages in dealing with issues over the phone, particularly if you have invested, as we have, in call recording technology to enable us to treat the spoken word as if it were written.  When you are trying to get quickly to the heart of what are often complicated and lengthy issues, it is far easier if you are talking to someone than if you are having to swap endless letters.

Of course the part of the organisation which is being tested out at the moment is the front end, what we have called the Assessment Centre.  It is their job to deal with the initial contacts and make an assessment of which cases are eligible under our Scheme Rules to be accepted by the Ombudsman scheme and which need to go elsewhere. 

Some callers have simply got the wrong number – we have had a sprinkling of people calling us to pay their TV licence (in one or two cases, insisting on giving us their credit card details).  Others have the right number but for the wrong reason: one rather confused old lady I spoke to yesterday had got hold of our details by accident and was simply ringing to find out what we did.  The single biggest group of callers are those who need to be advised that they have to raise the issue with their lawyer before we can look at it.

But even though the majority of the 1400 or so matters which have come to us so far will never get beyond the Assessment Centre, that doesn't mean that we are not achieving anything.  When Jonathan Djanogly visited yesterday, we arranged for him to spend some time with a group of our assessors to get the feel of the work.

One of them, Brett, told him of our first caller: a man facing homelessness who had gone to a court hearing last week only to find that his solicitor had gone on holiday without telling him or the court.  Granted a week's adjournment, he had spent the past few days vainly ringing the solicitor's firm pleading for someone to represent him.  Brett could have told him to make a formal complaint to the firm or even asked the Ombudsman to accept the case as an emergency, waiving the requirement to raise as first stage complaint. 

Brett did neither. Instead, he rang the firm and alerted them to the fact of the call.  Within an hour, the caller had rung again to say that the firm had sorted out a lawyer to attend the next hearing - and to express his heartfelt thanks to us.  The case will never figure on our statistics but I don't care.  The issue had been resolved, quickly and without fuss.  And that is what we're here to do.


The shouting and the tumult dies

6 October 2010

The captains and the kings depart.  Well, in our case, Ministers and assorted legal luminaries.

Sitting in a cheap and cheerful hotel room reflecting on our first day of real work.

It all started some 18 hours ago when a BBC cab pitched up outside my house to drag my bleary carcass off to White City and the green room of the Today programme on Radio 4.  By the time my brain had fully caught up with my body, I had done more than a dozen interviews, one after another, most of them from one of those glorified broom cupboards which passes as a radio studio. And all the time I was looking at my watch, wondering what was going on back at the office.  As 8.30 neared, I began checking my emails, half in dread, half in hope that someone had sent me the news of how we were doing.  We had been planning for this for 18 months; now we were about to learn the result of all that planning.

8.20: nothing.  8.25: nothing.  8.30: nothing.  Radio Norfolk was due next and I took the risk of taking my phone off silent, as if defiance of all studio etiquette would force a response.

And it worked.  At 8.42, attentive radio listeners in Diss and Thetford may have heard a discreet "ping", followed by the sound of a distracted interviewee scrabbling clumsily to see what had come in.  And then an audible sigh of relief: someone had managed to bypass the formal mechanisms and email me direct.  We had a complaint. In fact, we had 497 in all.  The rest of the day was a blur.  When I got to the office at midday, the place was buzzing.  Complaints were coming in (this time to the proper home for new complaints) and, more importantly, were being answered.  The IT was functioning, the systems worked and, most important of all, the staff were alive with energy and enthusiasm.

And that was that.  We're here.

The subsequent formalities of the past few hours don't matter as much.  The Ministerial visit and stakeholder reception we had arranged to celebrate our opening were great.  But they were nothing to the charge I got from listening in as my fantastic colleagues set to work taking – and resolving - complaints.  There are stories to be told of the cases we dealt with – including the cases I dealt with when I took my turn on the phones – and doubtless a lot of this blog will be devoted to telling such stories.

But it is the memory of our people which will stay with me tonight, together with the knowledge that we are finally open for business.


Making it real

5 October 2010

The penultimate day of training. Like any athletes preparing for a big race, we're not pushing ourselves too seriously just two days before the event; the hard miles were done in the past few weeks and we need to sure we don't expend all our efforts beforehand. But we do need to keep ourselves in trim and do the last minute preparations.

And so we have sessions on the new iteration of the IT system, alternating with dry running of old cases. And, to liven up what could be a dull two days of phoney war, I have asked along an old friend of mine to speak to them. A man called Erwin James.

Now, I don't know how many of you have heard of Erwin. If we've got our blog linking right, I'm sure we can enable you to do your own research. Suffice it to say that Erwin, for all his history, is one of the most impressive humans I know, a man who not only has a story to tell but is articulate and entertaining in the way he tells it. Read him on the page; he is ten times better in the flesh.

But I didn't know whether I was right to push for him to be scheduled in for the training. After all, I knew him but no-one else from the organisation had met him. He works for me: what if he doesn't work for the staff.

And, of course, I should have had more faith. When I introduced him, I deliberately didn't put him into context. I didn't want to try to tell people what I expected them to get out of the session. There was no big message. I just wanted him to tell his story and them to take from it what they wanted.

Which they did. And, as luck would have it, what most of them seem to have got is what I hoped they might.

We are a business which deals in complaints. But behind every complaint is a person and every complaint is a story. People go to lawyers at really stressful and difficult times in their lives – when they are getting divorced, when someone has died, when they are accused of a crime, when someone is buying or selling a house. So the stories behind their complaints are likely to be ones of human tragedy and thwarted human hope. In Erwin, they met someone who was palpably human, a real person with a real, compelling story to tell. On Wednesday, we will start receiving the first of 100,000 complaints a year. Each complaint is a human story and our first job is to gain the trust of the human and listen to the story they have to tell.


Comment:
"Just to say I enjoyed reading the blog – hadn't realised it was there but it's a nice idea and long may it continue (though how you find time for it I don't know!).  I am attempting something similar with my new role on the CIPA Council, but I only need to go to print once a month in the Institute's Journal which is a lot less pressure. Good luck with the launch tomorrow."


Publish or be damned?

1 October 2010

Final preparations for the tsunami which is about to break over us.

For once, I don't mean the wave of complaints which will hit us when we open the phone lines on 6 October. Yes – that will be difficult. But we have been planning for that for months and are as ready as we're ever going to be. If we get one or two of our processes wrong on Wednesday, the world will not end and we will, I suspect, be forgiven.

No – the deluge which worries me is the one which will follow the issuing of our discussion document on the publication of information about the complaints we receive. Wherever I have gone over the past year, whatever audience I have been addressing, this is the subject which most occupies them. "What will you publish about your work?"

And of course they don't mean "Will you be publishing data about what sorts of complaints you receive?" or "Will you be publishing specimen examples of the sorts of decisions you have made?"

It is taken for granted that we will be doing exactly that. They know, as we do, that that sort of feedback is the least you can expect a modern Ombudsman scheme to give about its work.

Let's be clear. When people ask general questions about publishing, what they mean is something much more specific. "Will you be publishing the names of the lawyer concerned in the complaint?"

And that gets us into much trickier territory.

On the one hand, there are strong arguments in favour of naming (the lawyer at least – we are not allowed to name the complainant by law). It is transparent (openness is a core Ombudsman value). It enables consumers to make an informed choice about what lawyers they may wish to employ. And it is consistent with the direction of travel of other Ombudsman schemes.

But there are also dangers. In markets like, say, the banking sector, which are dominated by a limited number of very large providers, the number of complaints made can be a real guide to the customer service you are likely to receive. But the legal market is much more diffuse and the number of complaints against any one individual or firm is likely to be tiny. Given this, complaints data is much less useful and, as anyone can make an occasional mistake or have an individual dissatisfied customer, it is potentially misleading. If publishing names results in firms attempting to divert potential complainants away from the Ombudsman by, say, paying them off rather than risk being named, the consequences would be very damaging.

So this is one of those times when you issue a discussion document not because you are softening people up for what you already know is likely to be your direction of travel but because you genuinely want help in shaping your decision. I suspect we know the arguments. It is the evidence we lack.