Can the Legal Ombudsman look into complaints about negligence?
A common enquiry I receive from service providers through our Technical Advice service is whether we can investigate complaints about negligence. Specifically, complaints in which the client has alleged professional negligence, or where the service provider’s view of the complaint is that the matter is one of professional negligence.
The answer to this question is often yes. Although the role of the Legal Ombudsman is to determine whether the service provided by a lawyer was reasonable, there is often an overlap between service and negligence. Our approach is that a service provider can’t have been negligent without having also provided poor service, and it is the service elements of those complaints that we are able to determine.
It is important to be clear that our job is not to decide whether there has been negligence on the part of the service provider. That is a decision only a court can make. Instead, we consider the complaint, and any remedy, by reference to what is, in the opinion of the ombudsman making the determination, “fair and reasonable in all the circumstances of the case”.
If the complaint is one of pure professional negligence, we would dismiss it on the basis that the court is the appropriate forum to deal with the matter – as they have a wider discretion when it comes to awarding damages. If the complaint contains elements of negligence but also service, we would advise the complainant of their options – which would include us looking at the service aspects of the complaint that we are able to determine. We would also explain that, if the complainant agrees with the findings of our investigation and any remedy, it would then preclude them from pursuing further negligence proceedings in the court.
If we conclude that a service provider’s service has been unreasonable, our aim is – always to put the client back in the position they would have been if the service had been reasonable. The Legal Ombudsman doesn’t award damages, which means that in some cases, the complaint would be more appropriately dealt with by a court. But often, where there is detriment in the form of direct financial loss arising from the complaint, we can direct the service provider to reimburse this to the client.
We often see complainants saying a provider has been “negligent” or there has been “negligence”. These are words in general use, and a complainant may not know or be using them in the strict legal sense. We would always advise service providers to let their insurers know if a complaint refers to negligence – but we also ask them to think about whether or not the complainant is using it in its legal sense, and what they are really complaining about.
However, some service providers believe that the Legal Ombudsman can’t investigate complaints where there has been an allegation of, or reference to, negligence. This is incorrect.
To give a recent example, we received a complaint about a residential conveyancing matter. The client was purchasing a property with an extension, and complained that the service provider – a firm of solicitors – had failed to ensure that the extension had been signed off and completed to an acceptable standard.
The service provider challenged us when we accepted their client’s case for investigation. They said the complaint was a matter of professional negligence, and as such it was the court, rather than the ombudsman, who should be considering it.
When the firm had obtained the survey, it had in fact referred to three extensions, and had noted the need to ensure these had been signed off. In particular, the survey mentioned cracking around one of the extensions. The complainant asked the firm to ensure that “all paperwork for all of the extensions as per the survey” were in order.
The firm replied enclosing the paperwork, and confirmed to their client that everything was in order. However, they had missed one of the extensions – there was only paperwork for two..
The service provider could be right – this omission could be negligence – but it could also be service. The client had asked the firm to do something, they didn’t do it – but they let the client believe they had. That was poor service. We therefore advised the service provider that this was a matter that we could consider and determine.
We have extensive internal guidance explaining to our own investigators how they should approach cases where negligence is alleged. This is mirrored in our external guidance to the profession – this means we apply a consistent approach.
As always, we are here to give service providers informal advice about complaints via our Technical Advice line. So if you have a complaint and are not sure what the ombudsman’s position would be, get in touch with us and we can talk through how we would approach it.