Residential conveyancing is once again the most complained about area of law, according to the Legal Ombudsman. Pearl Moses looks at how to mitigate some of the most common causes, and outlines complaints-handling best practice and regulatory requirements
‘Buying a house is probably the biggest financial outlay most of us will make during our lifetime; this alone makes it an anxious, often deeply emotional experience. So if we then have the added worry of a significant delay, unexpected legal cost or go on to discover that plans for a new development just behind our new house were not revealed in the searches, we could be forgiven for thinking our lawyer has failed us in some way.’
Nobody’s perfect, and there will be times when clients are dissatisfied. If you pick up on this dissatisfaction and resolve issues as they arise, then clients are more likely to recommend your practice to others
The above extract from the Legal Ombudsman’s recent report Losing the plot: Residential conveyancing complaints and their causes (www.legalombudsman.org.uk/reports/conveyancing) highlights how a property purchaser’s dream of owning a new home can become a nightmare – and a significant cause for complaints – when a firm’s service delivery comes up short.
Residential conveyancing complaints accounted for around 23 per cent of the complaints handled by the Legal Ombudsman in 2014-15, making it the most complained about area of law for that period. The Legal Ombudsman’s current top 10 reasons for complaints across all sectors is as follows.
- Costs-related complaints
- Failure to advise
- Failure to follow instructions
- Failure to keep client informed
- Data protection issues
- Failure to comply with agreed remedy
- Failure to investigate complaint internally
- Failure to keep papers safe
It is worth noting that reasons 1-5 are commonly levelled at residential conveyancing lawyers by their clients. Alongside delay and poor cost information, failures to advise, follow instructions or manage expectations are frequent causes of conveyancing complaints.
Faced with this reality, it is worth looking at complaints a little more closely and considering what property practitioners can do to mitigate the more common issues.
What is a complaint?
In essence, a complaint can be any expression of dissatisfaction. Firms tend to focus on formal complaints: letters or emails that clearly state that they are a complaint. However, many complaints are initially made informally, like a person phoning to say that a minor matter has not been dealt with within a stated timescale. While this person may not be making a formal complaint, they are expressing dissatisfaction about an element of service that they have received. You should try to pick up on these cues and deal with the issue promptly, if possible. You should explain to the client how the problem might be resolved informally, as well as highlighting the formal complaints process where necessary.
How to deal with complaint?
Chapter 1 of the SRA Code of Conduct 2011 requires all practices to have a process for responding to client complaints. Faced with a complaint, it can be easy to feel attacked and take allegations personally. Strong emotions such as these can get in the way of effective complaints handling. In these circumstances, guidance from the Legal Ombudsman’s guide to good complaints handling (tinyurl.com/zqjh7mm) is particularly helpful. In a nutshell, the ombudsman encourages practitioners to do the following.
Identify what the complaint is about.
Understand the reason for the complaint.
Acknowledge the complaint within two working days of receipt.
Provide a map of options available to the client.
Spell out any implications of the process in terms of cost, time and impact for the client’s case. Use clear, comprehensible language and a neutral tone.
Share your findings with the client.
If you find poor service, acknowledge this fact.
If you feel the service provided was reasonable, provide a clear reason for your decision.
If you are unable to agree on a resolution, signpost the client to the Legal Ombudsman.
Why effective complaints handling is important
Good complaints handling makes sense for a number of reasons, detailed below.
Satisfied customers will be loyal. They will use your services again and encourage others to do so. This means that you won’t have to invest as much in bringing new people through your doors. And remember, when complaints occur, ensure you use them to good effect: complaints can be an invaluable source of management information that can help drive improvements. Indeed, the service improvement business Mary Gober International describes a complaint as ‘real gold’ in that it provides the proactive organisation with invaluable data.
A recent survey conducted into the delivery of legal services and shared by the Legal Ombudsman office found that 82 per cent of people would choose a lawyer based on the recommendations of friends, family or colleagues, so it is important that clients are satisfied with the service they receive. Nobody’s perfect, and there will be times when clients are dissatisfied. If you pick up on this dissatisfaction and resolve issues as they arise, then clients are more likely to recommend your practice to others.
There is also a regulatory imperative to handle complaints well. The principles in the SRA Code of Conduct (as currently drafted) require you to co-operate with the Legal Ombudsman. They also require you to act with integrity and maintain the public’s trust in the profession. Handling complaints effectively and fairly is an important part of this. Chapter 1 of the code includes outcomes that must be met in relation to complaints handling. It states you must deal with client’s complaints promptly, fairly, openly and effectively (O(1.11)). It also requires you to provide clients with information on the complaints-handling process (O(1.9) and O(1.10)).
The Legal Services Act 2007 (LSA 2007) states that the Legal Ombudsman must charge a case fee for the cases it investigates, so the default position is that as soon as a complaint is accepted for investigation, a case fee can be charged. The Legal Ombudsman currently has the power to impose a £400 case-handling fee.
However, the LSA 2007 requires the Legal Ombudsman to have a structure for waiving the case fee in specific circumstances. The details of this are set out in the Scheme Rules (www.legalombudsman.org.uk/downloads/documents/publications/Scheme-Rules.pdf). However, the two key elements to remember are that a case fee will be waived if the Legal Ombudsman is satisfied that the lawyer took reasonable steps under their complaints procedure to resolve the complaint, and if the Legal Ombudsman’s view about the service or remedy required for a complaint is the same as the lawyer’s, or if the consumer has decided not to continue with the complaint.
There are two things that a lawyer can do to maximise the chances of the fee being waived. First, get the signposting to the Legal Ombudsman correct. You must tell clients at the beginning of an instruction about their right to complain, and this must be repeated in their final complaint response, alongside the Legal Ombudsman’s contact details and the timescales for bringing a complaint. A lot of lawyers don’t realise that this information has to be in their final response (not just in their complaints procedure), and that if they don’t tell a consumer about the six-month time limit for bringing a complaint, the clock will never start. The second thing lawyers can do is to take the time to consider the complaint: whether there has been poor service and whether a remedy is required.
You can keep clients happy and ward off complaints before they happen by paying attention to the following.
Why is the delay occurring? Is it real and substantive? Have you explained it to your client? Are you sure that they have understood your explanation? Being able to answer these questions will help keep you safe in this area.
Price matters to clients, and managing expectations in this area is vital. It is crucial that lawyers avoid the element of surprise, leaving their client with a sense of having been ambushed when it comes to what their transaction will cost them. Are you confident that you have communicated the cost element of your work to your client? Have they understood it? Is the cost of the matter likely to come as a bolt out of the blue? If so, what steps can you take at this point?
Failure to advise
Do you have a clear record of your advice to the client? Are you aware of your client’s expectations of the process / end result? Are the expectations reasonable, realistic, achievable?
If your client’s expectations are unreasonable, unrealistic or unachievable, have you addressed this? Clients sometimes have expectations that go beyond their instructions because they are unfamiliar with the conveyancing process or your role within it.
A firm-wide ethos
All staff should understand the complaints process and their role in it. Not every complaint needs to be dealt with through a formal process: if a practice receives a complaint about a failure to return a phone call, for example, this may be resolved by the recipient promptly calling back and apologising.
However, if the complaint is in the form of a formal letter to the partner responsible for handling complaints, then a response in accordance with the formal complaints-handling process from a senior member of staff is probably more appropriate.
Staff should be aware of when they should handle a complaint, and when it should be dealt with by a more senior member of staff or a third party. They should also be made aware of the importance of resolving complaints where it is appropriate for them to do so, rather than passing on the complaint.
Research by Consumer Focus has shown that it is important for clients to feel that a named individual has taken ownership of their complaint, and that proper records mean that they do not have to repeat their story.
Help for COLPs
Your complaints profile, systems and procedures have always been important, but perhaps never more so than today. Effective complaints handling must be at the heart of the firm’s ethos. This places it squarely on every compliance officer for legal practice’s agenda, whether or not they have day-to-day responsibility for complaints. The LSA 2007 placed compliance at the forefront of every legal service provider’s business.
If you are involved in managing compliance, the Law Society’s Risk and Compliance Service can help! Recent changes to the legal regulatory landscape mean that senior-level partners, law firm managers and risk professionals will be under intense increasingly scrutiny. They are expected to take a lead role in creating an effective risk-aware culture and have greater responsibility for embedding core risk management systems, policies, and procedures within their firms. Why not visit our webpage today (www.lawsociety.org.uk/riskandcompliance) and take a look at the bespoke ways in which we can support you in your role?