The Legal Services Board (LSB), determined to improve the way in which first tier complaints are handled, has now produced three documents aimed at regulators and setting out its expectations in relation to complaints handling by the legal professions. It is inevitable that their revised expectations will trickle down via the regulators to the law firms receiving the complaints and it is likely, therefore, that we will soon be seeing new requirements for complaints handling and an increase in the enforcement of those requirements by the SRA. Those firms that do not currently have robust complaint handling processes, or who do not take complaints seriously, may need to deal with matters in a different way in the future.
For these purposes, first tier complaints are the initial complaints that consumers make to their legal provider about the service they have received. In other words it is the initial expression of dissatisfaction with the service, cost, or outcome of the matter being dealt with. Bear in mind that this dissatisfaction may not be by way of a formal written complaint – it may simply begin with the client telling the fee earner that they are less than satisfied with some aspect of the way in which their matter was dealt with.
These measures put forward by the LSB are designed to create significant improvements in the way in which complaints are handled. This is to be achieved by ensuring that, wherever possible, complaints are dealt with promptly and as close as possible to the source. In other words making sure that the complaint is handled by the firm before it is escalated to either the Legal Ombudsman (LeO) or, if it is about conduct, to the Solicitors Regulation Authority (SRA). In particular, the LSB believe that clients need to know that their complaint will be taken seriously by the provider of the service, and the nature of the complaint and their feedback used to make improvement to those services in the future.
The LSB has found that:
- almost half of complaint cases escalated to the LeO were found to have been handled inadequately at first tier,
- 30% of complaints to the LeO are made prematurely – that is, before the first-tier process has been exhausted. This could be a combination of a lack of confidence in the process or fear that it is too complex, and
- despite dissatisfaction with legal services, 26% of those who responded to the Legal Services Consumer panel’s Tracker Survey 2023[1] did not take any action, pointing to a potential need for enhanced protection and advocacy.
There are three documents that have been published to set out the new expectations – the s. 112 of the Legal Services Act 2007 (LSA) Requirements for Approved Regulators[2], the s.162 LSA Requirements for Provisions[3] and the Statement of Policy issued under s.49 of the LSA[4].
They have been based upon the results of extensive research, consultation and stakeholder engagement. The consultation on First-tier complaints ran from 24 August 2023 to 17 November 2023 and was responded to by just 17 organisations. The LSB’s response to the consultation was published on 16 May and can be found on the LSB website[5].
In summary, the proposals require that complaints handling procedures should be easy for users to find, and they should be able to make complaints in the way that suits them best. Clear information on how to make complaints should be provided when needed and, if a complaint is made, updates on progress should be given.
Legal service users should feel confident that a complaint will be handled fairly and promptly, without any negative consequences for them.
The LSB’s statement of policy requires that regulators pursue the following outcomes:
- the best possible complaints resolution system for legal services users by using information and intelligence gathered from first-tier complaints and second-tier complaints;
- a culture of continuous improvement and learning from complaints and feedback to improve legal services.
Together, the Requirements, Guidance and statement of policy aim to deliver a step-change improvement in first-tier complaint handling by ensuring that complaints are dealt with effectively, efficiently and fairly.
The s.112 requirements provide for five specific areas where regulated persons, i.e. solicitors and other providers, must ensure that their complaint processes are satisfactory. Those five areas are:
Consumer confidence – complaints must be:
- assessed competently, diligently, and impartially,
- responded to fairly, consistently, and promptly, and
- resolved at the earliest possible opportunity,
and the firm must communicate promptly the outcome of the complaint and, if a remedy is offered, ensure the remedy is available promptly.
Accessibility – the complaints process of the firm must:
- be free of charge,
- prominent and accessible,
- set out the steps that will be taken to resolve a complaint,
- explains how a complaint will be handled
- provide information on the possible outcomes to a complaint, including any options if a complaint is not resolved to the complainant’s satisfaction
- be effectively communicated to each client in a way that addresses their circumstances and ability to understand the outcome,
- allows clients to make complaints in a way that is reasonable and accessible to the client.
In addition, the firm must ensure its complaints procedure is documented in writing and available to staff, endorsed by senior management and implemented consistently, and also periodically reviewed.
Provision of information – the firm is required to ensure that the client is informed at the beginning of a matter, at the end of a matter, upon request and where a complaint is made of the following:
- the firm’s complaints procedure,
- the client’s right to make a complaint to the firm about their services,
- how a complaint can be made, and
- that unless the matter is resolved satisfactorily within eight weeks following the making of the complaint that they have a right to complain to the LeO.
So far as taking the matter to the LeO is concerned, the client must be informed
- of any rights they may have to make a complaint to the LeO,
- how to complain to the LeO,
- any time limits relating to that complaint,
- details of any relevant information made available by the LeO, and
- full details of how to contact the LeO.
Communication – When a complaint is first made, the firm must provide the complainant with:
- a prompt acknowledgement of receipt of the complaint,
- clear and comprehensive information about the firm’s complaints procedure including the information referred to above,
- information as to who the complainant may contact about their complaint,
- a timeline for the resolution of the complaint, and
- regular updates on the progress of their complaint.
Note that the firm must ensure that the information is provided to the complainant clearly and using plain and appropriate language.
Learning and improvement – finally, the firm must make sure that it puts in place measures that allow it to:
- identify any risks or issues including systemic issues in how it has assessed and sought to resolve complaints and or in its services, and
- address those risks and issues.
In addition the firm must provide appropriate training to all relevant staff and take seriously and deal with any matters identified in relation to those two points above.
More worryingly, perhaps, is the suggestion that the LSB is going to require firms to publish their complaints handling record. In their response to the 2023 consultation, the LSB have stated that they see publishing firms’ complaints records as “an important aspect of our policy, as we anticipate it will act as an incentive to authorised persons, including firms, to resolve complaints in a timely way, and to be accountable where this does not happen.” Whilst the LSB has accepted that “there is a need for the data to be properly contextualised in order for it to be a meaningful and fair representation of firms’ performance” anyone who has dealt with clients knows that it is the headline figures alone that they will see and those firms that do work in sectors prone to often unjustified complaints – many as a means for getting out of having to pay fees – will be disproportionately affected since the public are unlikely to recognise the finer details of the complaints explanations. No doubt we will just have to watch this space.
Infolegal will over the course of the coming weeks be updating its guidance on complaint handling to encompass the proposed changes and will be revising its policy documents and training courses accordingly. Those who are subscribers to the Infolegal InfoHub will have access to all of these revised resources.
[1] https://www.legalservicesconsumerpanel.org.uk/wp-content/uploads/2023/07/How-consumers-are-using-legal-services-report.pdf
[2] https://legalservicesboard.org.uk/wp-content/uploads/2024/05/s112-Requirements.pdf
[3] https://legalservicesboard.org.uk/wp-content/uploads/2024/05/s162-Guidance.pdf
[4] https://legalservicesboard.org.uk/wp-content/uploads/2024/05/First-Tier-Complaints-Policy-statement.pdf
[5] https://legalservicesboard.org.uk/wp-content/uploads/2024/05/LSB-response-to-consultation.pdf