Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witness (Questions 20-39)

4 MAY 2004


  Q20 Mr Soley: Listening to you and looking at some areas of your report, you are actually being quite gentle on the services you are supervising or looking at. You must have a great deal of experience of consumer complaints. Can I put it to you that in fact, putting it kindly, many of the professionals in the area you are dealing with have come very late in the day to the idea of consumer complaints. Putting it rather more bluntly, most of them object strongly to the concept of consumer complaints, do not like the idea, feel they are being put upon and that consumers should stop whingeing, pay their money and accept the service they get because it is a far better service than they appreciate. That is the attitude of a significant number, is it not?

  Ms Manzoor: It would be difficult for me to comment on that for the simple reason that obviously I do not see a significant amount of complaints that come to the professional bodies. I see a number of complaints that come to my office. I think it would be unfair to say that the majority of solicitors and barristers do not handle their complaints well, because on the whole the majority do handle the complaints very well. However, there are some real concerns about the minority that do not handle those complaints very well. A robust approach needs to be taken to enforce, for instance for solicitors from the Law Society, Rule 15, which says very clearly that solicitors have to have a written complaints-handling procedure and they have to log all the complaints that they receive. It is interesting to me, when you look at the last two surveys that have been undertaken, that 6% of the firms did not actually have a written complaints-handling procedure.[2] Therefore, I think a robust approach by the Law Society needs to be undertaken to ensure that there is a written complaints-handling procedure, that complaints are logged, and that solicitors who need training in client care are given that training. The Law Society also set up a Standards Practice Unit. It was envisaged, when this was set up in November 2001, that the Standards Practice Unit would go out and visit solicitors, approximately 2000 firms a years. I have been disappointed that the number of firms that they have managed to visit has not been of that ilk; it has been about approximately 134 firms and potentially a little less the previous year. The intention was that they would audit these firms, look at their complaint-handling processes and at their compliance Through the Law Society's own research, it is pretty evident that when they visit these firms there is a marked improvement in their complaint-handing systems and processes. Certainly, it is an area that I will be working very closely on with the Law Society to see if we can have more audits.

  Q21 Mr Soley: I can accept that there has been a significant improvement, thanks to the Law Society partly recently, but I think you would accept that there is still an awful lot of people out there in these services who are way below par when it comes to dealing with public complaints and who do not believe the public should be complaining in the way that they are. That is right, is it not?

  Ms Manzoor: I think there are a lot of people who feel that they are not getting the service that they deserve. We have to look at the number of complaints that comes to the Law Society. We must not forget the at times very tortuous complaints-handling process. A complainant has first got to complain to the practitioner. If they are not satisfied, then the complainant has to write to the professional body and the complainant then may have to go through very complicated processes before the complaint lands on my desk; which it may or may not. Complainants have to be pretty persistent to get through the very complicated process. I often say that they must have persistent genes. I wonder what percentage of complaints do not make it off first base. In these cases we are really looking at the reduction of access to justice for them.

  Q22 Mr Soley: I think that is right. What you are saying is that the Law Society has made a significant attempt recently with the new consumer complaints service amongst other things. I agree with that. What I would like to understand a bit better is how you see your relationship with the variety of these legal bodies proceeding. A number of us would say that if it does not improve rapidly, then it ought to be statutory, frankly. Do you see yourself as dealing with them in a consultative discussion method? You point out in your own report that you want to have an improved relationship with the bodies but I am not quite sure whether an improved relationship means you are helping them, guiding them if you like, towards a better complaints procedure or actually being prepared to put the boot in at times when they need it.

  Ms Manzoor: I do not know if you have read my interim report.[3] Certainly I think that the professional bodies would say that my approach was very robust. Anyone reading that report will be under no illusion at the very robust approach I have taken to complaints handling with the professional bodies. I have a very good and effective relationship with the five professional bodies. I think, certainly in my Ombudsman role, I need to ensure sometimes that there is greater communication and co-operation. I have highlighted that in my report. One hears about some areas, for instance the new directorate, the Consumer Complaints Directorate, which was announced without any consultation taking place. I think stakeholders could be involved much sooner than they have been in terms of any changes that are taking place. Certainly, I enjoy excellent working relationships but you are right to suggest that as Ombudsman I can only make recommendations as to where improvements could be made. Certainly, over the past year I can demonstrate numerous changes that the Bar Council has made as a result of us working very closely together for the benefit of the consumer. That is all very good progress that has been made. That is not to say that there is not further progress to be made because that would not be accurate. You have rightly pointed out earlier that we have undertaken a review of complaints handling by the three smaller professional bodies. Once again, we will be working very closely with the Bar Council some time later on this year to look at auditing and reviewing their complaints handling on site. They have been very amenable and co-operative in order to allow me to do this. For example, they undertook a MORI survey last year, which was pretty hard-hitting. Anyone reading that report would say that some of the issues raised needed to be addressed. The Bar Council has undertaken a number of initiatives that will help to progress that matter. To give you an example of the things that they are doing, and this survey was conducted in June 2003, 74% of the complainants were dissatisfied with the outcome of their complaint and 75% of the barristers were satisfied with the outcome. You can see the two views that are polarised. The majority of the complainants in that survey said that the system lacked independence and 29% of the complainants were not aware that the Bar Council had any lay representation on its Complaints Committee. They also cited that access to the service could be better and maybe the language that was used by barristers could be simpler. The response from the Bar Council has been excellent. They have been looking at setting up a telephone service—they do not call it a help line—so that barristers and indeed complainants can telephone and ask for advice and information regarding their complaints. That is all very positive. They have looked at the clarity of the information that they produce, so they are looking at their leaflets and their standard letters, and they have started making changes to those. They are looking at their performance statistics. One of the anomalies between the Law Society and the Bar Council was that the Bar Council's turnaround time seemed very long, but when you got into the detail of it, the clock kept on ticking irrespective whether that case when to court or not, or indeed was referred to my office, whereas in the Law Society's case the clock stopped ticking when it came to my office or went to court. They are auditing their performance statistics . . . so that they better reflect what is happening to a case. They have been looking at access, particularly for disabled complainants; they have sent all of their staff on diversity awareness training, which is the result of us working together; they are looking at home visits to complainants; they are looking at tape-recording for complainants that do not have the language skills that they may need. Indeed, they have invited the Law College to undertake client care training when there is direct access to barristers, which of course once again is very important. Forgive me for saying that barristers are not used to dealing with complainants; that is an area that they need to address. Certainly the Bar Council has taken this on board. I think that is excellent news and I shall be getting involved with that. I have had one meeting with the Law College to see what that particular training looks like from a consumer's perspective.

  Q23 Mr Soley: The reason I was asking that question initially was that you have in your foreword as one of the tasks you set yourself to "develop a closer and more involved working relationship with the professional bodies with the aim of helping them to identify how they can significantly improve the performance and effectiveness of the service they provide to complainants". From everything you are saying, that is what you are trying to achieve and that is what you are doing. You are describing a number of achievements which are good, long overdue and welcome. I still wonder what you do when you get the very bad ones who do not want to co-operate.

  Ms Manzoor: There are individual cases and those individual cases are dealt with on an individual basis. If the case is being dealt with poorly, then I can assure you there is a very robust stance taken, whichever professional body it is.

  Q24 Mr Soley: Would you like statutory powers to deal with those?

  Ms Manzoor: As LSCC, I have been given the additional statutory powers to deal with the Law Society in terms of its overall performance. I think those powers certainly could be enhanced. You are right to say that the powers that I had previously had, held no sanctions as Legal Services Ombudsman. I could only make recommendations. Professional bodies could ignore them, should they wish to do so. On the whole, I think that the professional bodies have tried to make a concerted effort in trying to implement some of those recommendations. What I am suggesting in my answers is that some professional bodies have had more success than others. The Legal Services Complaints Commissioner has been appointed in relation to the Law Society, and I am looking forward to working closely with them to ensure that we continue to implement changes to the overall performance.

  Q25 Mr Soley: May I interrupt you there? Are there any specific additional powers you would like to have?

  Ms Manzoor: That is an interesting question! It is early days yet. I have only been appointed as the LSCC from 23 February. One of the weaknesses certainly as LSCC that I can see is that I have no right of entry on to the premises of any professional body. That is currently a weakness. I have to gain permission and at the moment my power only relates to the Law Society, so I can only speak in relation to the Law Society. I have no right of entry. I think that needs to be strengthened.

  Q26 Chairman: Is that a real problem. Is there hiding of files or shredding of document so that you have to get in there, do you think?

  Ms Manzoor: I hope it is not going to be a problem. Indeed, the Law Society took legal advice on Friday in terms of my powers. The Director of the Customer Complaints Service, Ian Wright, telephoned me this morning as I was travelling down to say that, having taken that legal advice, they will ensure I have reasonable access to the systems and processes of the Law Society. I expect co-operation. I am sure I will get co-operation. Early indications are that I will receive that co-operation but it is early days, and I will see over the next few weeks and months how much co-operation I receive.

  Q27 Mr Soley: Finally, is the impact of the independent Lay Commissioner appointment by the Law Society good, do you think? Is the impact that the lay appointment system has had on the Law Society good?

  Ms Manzoor: The impact on the Law Society or the impact on the consumer?

  Mr Soley: The impact it has had on the processing of complaints?

  Q28 Chairman: This is the appointment of the independent Lay Commissioner.

  Ms Manzoor: Certainly I think for consumers it is good news because I would like to feel that, by working with the Law Society, we can push through improvements that are needed and necessary in terms of complaints handling. As for the impact on the Law Society, as I have already indicated, there is some nervousness regarding the appointment of the Commissioner. It is true to say that they did not want the Commissioner to be appointed.

  Q29 Chairman: I think we are talking about two different commissioners. I think Mr Soley is referring to the appointment of Sir Stephen Lander by the Law Society as its independent Commissioner or Lay Commissioner. The terminology is hopelessly confusing.

  Ms Manzoor: It is.

  Q30 Mr Soley: I thought you were saying it is good and that is why I think we are getting confused.

  Ms Manzoor: My appointment is good as independent Commissioner because I am independent of the legal profession; I have no conflicts of interest and I am there to ensure that there is a balance of power between the professional bodies and indeed the consumer. In terms of the Lay Commissioner, or what was subsequently called the Independent Commissioner, I have indicated my concerns in my annual report, and indeed in my interim report, regarding the role and functions of that appointment. Just as we were talking, there was that confusion. You will appreciate the confusion that it must create for consumers. The Lay Commissioner appointment is an internal appointment by the Law Society. I do not view it as independent. That does not reflect any issue in terms of the integrity or the impartiality of the person holding that office but, from the consumers' perspective, it is not independent of the processes and systems of the Law Society.

  Q31 Ross Cranston: I wanted to raise a general issue because you spoke about access to justice and it is this distinction between professional negligence on the one hand and inadequate professional service on the other hand. I think you have raised questions about this. Some of the complaints that do go to the professional bodies must be quite complex where they raise confidentiality and conflict of interest, for example, and just as complex as if you had negligence, although I can see why if you have a big negligence case you might say that it is appropriate to go to court. But for the smaller negligence case, it does not seem to me, just at first blush, that there is any difference. What are your thoughts on this? I know you have raised the issue but where is it going?

  Ms Manzoor: It is a very important issue. Certainly the interface between the poor service that a lawyer may give and negligence is a very fine line. I want to push the boundaries that much further so that minor areas of negligence can indeed be accessed by the professional bodies. Certainly the Bar Council looks at those cases more so. The Law Society is beginning to look at the interface. They have not yet produced criteria; they are in the process of doing that. I would certainly like those boundaries to be pushed out.

  Q32 Ross Cranston: Would it involve huge numbers of cases, do you think? Is that one of the problems, or what?

  Ms Manzoor: It is difficult for me to say because as Ombudsman I have only seen a very small number of cases. With my LSCC hat on of course I will be able to look at the overall number of complaints that are coming through to the Law Society, and so I will be able to see the number of cases that that affects. There are concerns that there is poor service, we have negligence cases, and we also have conduct or misconduct cases and that there is an interface between all of those three areas. My concern at the moment is over the hybrid cases that the Law Society is receiving because, as you have rightly stated, the Law Society has had another organisational change and therefore it will have three directorates. One will be dealing with service issues; a different directorate will be dealing with conduct and compliance issues; the third directorate will be looking at professional ethics and training.

  Q33 Ross Cranston: I guess it is not simply the hybrid case but just the confusion, is it not? Members of the Committee are struggling over understanding the structure. The person in the street would have enormous difficulty in making these subtle distinctions, then identifying what institution to go to, then recognising that if they are not happy at that point there might be a further step. It is very difficult.

  Ms Manzoor: I agree with you. The system we currently have is very complicated and complex and there are numerous steps in the complaints-handling process. I do feel that these need to be simplified. You are quite right. When I became Ombudsman, I saw negligence as a bad form of inadequate professional service. It was only later I realised, two or three weeks into my job, that negligence meant something entirely different. As a lay person, it was a complaint that was handled badly. You are right, the systems need to be much simpler than they currently are. The processes need to be much simpler. The information that goes out to the customer or the consumer needs to be better than currently exists.

  Q34 Chairman: Would good complaints handling involve telling the complainant that this case is of the order of poor service and negligence and would it involve advising them how they could proceed to explore the negligence element if successfully pursuing that might lead to a very substantial redress of what might be very significant financial loss or a very significant entitlement to compensation of a kind which could not simply be met by dealing with the poor service aspect? Would it involve advising the complainant that there were routes they could follow and directing them in some way as to how to do so?

  Ms Manzoor: In all fairness, currently that is the case with all professional bodies. If there are issues of negligence, mostly the complainant is advised to go back to the courts. Some complainants obviously have difficulty with that because they feel that already the legal process has failed them in one way or another, so there are some complainants that will not go back to the courts; there are others that may well go down that route; there are others that may be directed towards the insurance that a particular professional may have. That is one way that that case will be dealt with. I think it is very difficult to analyse an individual complaint and say whether it is on the borders of negligence or not. I would expect the professional body to deal with that if it is very much borderline. We also have to remember at the moment that the compensation level is a maximum of £5,000 which the professional body can actually go up to in terms of that individual complaint. However, it is fair to say that if you look at the number of awards that have been made by the professional bodies, as you rightly pointed out earlier, they do not often get up to the maximum of £5,000. Certainly the Law Society is in the process at the moment of looking at the range of compensation awards it makes and for what. I have encouraged them to look very seriously at the £5,000 end because there are very few awards that are made at that level.

  Q35 Chairman: We must remember that the aggrieved citizen in such a case, if he is going to go back to the courts, has to find another solicitor prepared to take a negligence action against the first solicitor, a course of action which, in a small community, is very difficult. It involves seeking advice probably from some other place where they do not know how or where to begin. How should they be helped?

  Ms Manzoor: It is a difficulty and indeed some of the complainants that come to me actually say when they write, "Look, nobody will take me. I want to go to another solicitor and no-one is prepared. What do I do? I really do not want to go back to the courts. It is going to cost me more money and it is good money after bad", according to their view. That is a very difficult situation. All I can do is look at that individual complaint and advise the best course of action. They can go to the Citizens' Advice Bureau where they can get free information as to where they can go further with their compliant. The Law Society itself, when they are looking at complaints, give some complainants an hour of free advice from what is called the Negligence Panel, which some complainants take up but others do not. I do not feel that that is consistently applied. That criterion needs to be looked at so that the complainant himself can choose as to which direction he wants to go down. You are right that there are some complainants who do have this particular concern. It would be unfair to brand every solicitor in the country as not being impartial and independent because they are. The majority of them offer a very good service and, if they feel that there is an issue of negligence, I would hope that they would take that case forward.

  Q36 Mr Dawson: Ms Manzoor, it is obviously very early days but in your role as Legal Services Complaints Commissioner, what have you done to ensure that this role is more easily understood?

  Ms Manzoor: In terms of the public at the moment, nothing. I was appointed on 23 February. I wrote to the Chief Executive of the Law Society on 12 March highlighting very clearly how I intend to operate. We have started setting up the office, the systems and processes that we will need. At the moment, my staff comprises me, my Operations Director sitting behind me, and one administrative support. That is the level of my staff. However, the Department has been very encouraging and has set aside a sum of money. We have started recruiting. We will be advertising for four posts. Hopefully, we will have high calibre individuals in place, certainly by September. I am hoping to have set initial targets for the Law Society by September of this year. I have already requested an initial plan from the Law Society on the way that it is going to improve its complaints handing. By September of this year, I will have already set targets for the Law Society. By September/October, I will be requesting a formal, agreed plan from the Law Society against which I can measure their performance. I am hoping there will be improved performance by March of next year and that we can demonstrate that. Of course, if the plan is inadequate, I can say so. If the Law Society fails to meet the targets that have been set, then of course I have the penalty powers. To assess the base line initially, I have recruited management consultants over a period of 12 weeks between now and the end of June that will actually assess the systems and processes at the Law Society to give me a foundation from which to work from, so that at a later date there is no confusion as to what that base line is and where improvements need to be made, and there is agreement between the Law Society and myself.

  Q37 Mr Dawson: How would you describe the reaction to your ro®le from professional bodies, such as the Law Society?

  Ms Manzoor: It has been cautious, and quite rightly so. As I have already indicated, the Law Society did not want the LSCC to be appointed. However, early indications have been very positive. It is early days to see how that relationship moves forward, but it is certainly encouraging.

  Q38 Mr Dawson: Has the Bar Council made representations to you regarding your role?

  Ms Manzoor: I think the Bar Council certainly feels that, thank God, it is not them. That would probably be their view. I have no oversight in terms of the Bar Council in my role as LSCC.

  Q39 Mr Dawson: Clearly, we have struggled with a few of the definitions here this afternoon. How will you demonstrate the separation of your ro®les to the professional bodies, and indeed to the public?

  Ms Manzoor: The two roles are very different. As LSO, I am looking at individual complaints; that is my primary function. As LSCC, I have a much wider strategic role. My two offices are going to be separate. The Ombudsman's office is based in Manchester; the LSCC office is based in Leeds. As we develop our business plan, we will share that with all the professional bodies and we will be looking at leaflets for the consumers, but we do not have direct interface with the individual consumer complaints in the first instance. This is very much about improving the overall performance of complaints handling by the Law Society and it's members. The two roles are distinct, and will be seen as distinct, and different staff will be undertaking those roles. There is no overlap. The only overlap is myself.

2   A survey by the Law Society Gazette in 2002 showed that 65% of solicitors did not have a satisfactory complaints procedure and 36% of solicitors had no written procedures. Both are mandatory and can be a disciplinary matter according to the Law Society's own rules and regulations. A further survey of 1,400 firms undertaken by the Law Society in June 2003 showed that of the 741 who responded 6% had no written procedure, only 18% maintained a written log and 15% failed to give clients information about their complaints procedure Back

3   Breaking the Cycle, The Office of the Legal Services Ombudsman Interim Report April-September 2003 Back

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