Balance in redress

A radical look at its complaints handling procedures is at the heart of a consultation exercise now running at the Scottish Legal Complaints Commission.

In essence, the SLCC wants to move away from the present process to something “person centred, rather than rule or institution centred”, in the words of its chief executive Neil Stevenson. Looking at alternative models, it has its eye on a possible goal of six months to go through the resolution process, rather than up to a year or more for some cases at present.

Stevenson, who until last summer was in charge of member representation and support at the Law Society of Scotland, may be new to the task of holding solicitors to account, but he now heads an organisation that is already looking forward to its 10th anniversary the year after next, and is seeking to achieve “peak efficiency and effectiveness” by that time.

Refocused priorities

I asked him first how his perceptions of the SLCC had changed, seeing it from the inside. “Four things have struck more than anything,” he replies. First, even complaints relating to service rather than conduct are still often complex and technical: “I hold my hands up that I may have been slightly guilty of seeing them as ‘easier’ complaints.” Second comes the scale of the public-facing role. “My most frequent correspondence as CEO has been with MSPs. Often I am explaining that we’ve independently examined an issue and found that a solicitor has offered a perfectly acceptable service, so there is a big role for us in building trust and reputation.” The third is how significant the focus now is on early resolution through conciliation and mediation. Finally, “My new colleagues have blown me away,” with their caring commitment and their team spirit. “We perhaps need to build on that, reaching out to the public and professions with a more human face than we do now.”

His comments provide some background colour to the SLCC's refocused strategy. Having begun life with a commitment to independence, fairness and impartiality, it believes it needs to provide more, in the form of five new priorities:

• building trust, based on the foregoing values but aiming to ensure all consumers know it is there to address their concerns;
• promoting strong relationships between consumers and their lawyers, through tackling the causes of common problems and ensuring issues are fixed quickly wherever possible;
• delivering early resolution and redress, seeking resolution at each stage of the process;
• driving improvement – internally and as respects complaint handling by lawyers;
• developing as a high performing organisation, as respects people and systems.

The strategy document begins to break these ideals down into more specific goals; but it is the draft operating plan for 2016-17 that really puts some flesh on the bones, covering everything from scoping a new website, to seeking volunteer firms to undergo an audit of their complaint handling logs, to reviewing the information available to consumers, to publishing “a decision-making toolkit to increase the transparency of our process and to aid consumers and lawyers in assessing the likelihood of success of any complaint”, to lobbying for legislative change to deliver a simpler framework, to planning a move to paperless working.

For both documents the SLCC wants to find out, basically, whether people think it is on the right track, what else (if anything) it should take account of, and whether it has pitched its ambitions too high, too low, or about right.

Confusing system

Does Stevenson believe the complaints process needs a completely fresh look? Yes, is the answer. While all involved are trying hard to make the system work, and further efficiencies may be possible, the “customer journey” mapping he has done to date convinces him that more is needed.

Suppose a mixed service and conduct complaint passes the eligibility sift (which has its own potential for court challenge). “We then investigate, try to settle, and determine the case. The professional body separately investigates, determines at committee, then maybe sends to a fiscal for a view, a committee considers it again, then the fiscal prosecutes at the Discipline Tribunal but on behalf of the professional body. Meantime, the consumer is not happy how their case was dealt with, so they raise a handling complaint under the statute with us. So we then investigate the professional body investigation, but in the meantime the unhappy solicitor appeals the SSDT decision and it’s off we all go on a jolly holiday to the Court of Session. Confused? We have to explain this to complainers every day.

“On top of this, there are at least four different legal and evidential standards applied at different stages, and many stages are utterly fixed in statute. When you see the process, as a customer experience for the lawyers and the consumers involved, it looks like madness. I am not criticising any particular element or role, but there has to be a debate on whether that is the model that really delivers best for lawyers and the public.”

What any new model would look like is still anyone's call. In terms of its operating plan the SLCC intends to hold round- table discussions on the future of legal complaints and service standards, one of which will specifically focus on the whole complaint handling process. And it intends to press for a “more permissive” Act, on the lines of the Law Commissions' proposals for complaints against health professionals, enabling “a simpler framework focused on the consumer's journey through legal services and not on traditional structures, and new tools to allow risk-based and proportionate responses (and so faster complaint handling)”.

Asked where he thinks there is most scope for saving time, Stevenson throws in a couple of ideas. “One debate I’m keen to have is how much time we give solicitors to respond. There are some quite strict time limits set out, but we often flex these around illness or holidays. On the one hand we have small businesses, so sometimes one individual will have the answer. On the other hand is that fair to the consumer, and even the lawyer who will often complain later about the length of time a case takes? We don’t want to be too time-limit bound, but if you look at something like data protection requests, and the strictness there, are we being too generous?

“Another area we are piloting at the moment is better triage: can we match the complexity and subject matter of the complaint with the best skills in our business for that case, and increase our productivity that way?”

Barriers and standards

Lawyers are not likely to consider that there are many barriers in the way to people complaining, but the SLCC believes that at least some of the public see things differently. “We know more men complain than women; we know you’re more likely to complain from more expensive postcodes, and less likely from less expensive ones,” Stevenson observes. “We get a lot of feedback that people think the system is biased in favour of lawyers and this discourages them. There aren’t always easy solutions, and we are not here to drum up business, but it is important that people know we can help.

“I strongly support a time bar within the process to create a balanced system, but some of the cases I find sad are where a potentially serious issue is time barred because someone didn’t know until too late that the issue could be addressed and we were here to help. This whole area is one of particular interest to our independent Consumer Panel, which is part of our statutory functions.”

The draft strategy document also refers to the SLCC lobbying for changes in what are already considered to be high standards of professional services and conduct. There are still improvements many lawyers can make to avoid complaints arising in the first place, but what is the scope for further tightening of the rules?

Stevenson responds by homing in on aspects of client care that generate the most complaints, presenting the consultation as an opportunity to increase trust, “and therefore help keep lawyers as a trusted adviser of choice and sustainable business”.

Regarding fees, for example, “Should we move to a model perhaps like financial services, where certain ‘key facts’ are in simple language, in bold, and on the first page of a letter of engagement rather than at the back?”

Not responding to clients or keeping them up to date with progress is another big one. “Should each firm need to publish its own response time, and we move to a ‘strict liability’ model where they don’t meet their own service standard? That could be controversial. But at the moment all firms pay the levy for the costs of those that don’t keep their clients updated, so where does the balance lie? On a lot of these issues we don’t want to present answers, but to raise discussion about what ‘better’ looks like and only then select what might be explored in more detail.”

Again, the SLCC's Consumer Panel has found that consumers find selecting a solicitor difficult. Is it time, then, to have guidance on what information should be displayed on law firm websites, as happens in some other sectors? “Of course, rule setting is for the professional bodies, but with a database of over 8,000 complaints now, we’re well placed to use that evidence to discuss what works well and less well for clients.”

Another question posed is whether the SLCC should have access, as was originally intended, to a firm’s complaints log to give it a better picture of patterns of complaints, rather than having to treat each case in isolation.

Indeed Stevenson challenges the profession to take initiatives before others force the pace. “The Competition & Markets Authority is now formally investigating legal services in England & Wales, and any findings will spark debate up north. One of their last investigations, on payday lending, saw that market forced to start using comparison sites to aid consumers. I mentioned this idea for the legal sector at a recent think tank of those involved in the Scottish market, and was pretty much laughed at (although in a very kindly way), but since then I see the Legal Services Board in England & Wales has placed this concept in their strategy.”

Further support

The SLCC does make efforts to help lawyers deal with complaints effectively themselves, and is exploring ways to add to these, particularly for smaller firms. Here again, Stevenson throws up ideas while remaining open to others. “Maybe the SLCC could support local faculties to set up peer ‘buddying systems’? We also want to publish more indicative outcomes, so lawyers can better assess how we might eventually determine something, and their own approach. I don’t want to rush to picking a solution, but open up dialogue about how we work with the professional bodies and lawyers to improve this. Reducing the complaints coming to us, by better handling at the first stage, is one of the best long-term ways to reduce our costs.”

The SLCC has begun publishing online, selected anonymised case summaries, some where a complaint was upheld and some where it was not – but not with the detail that might provide much guidance. Stevenson recognises this, but tells me that the new SLCC newsletter for client relations managers (see www.scottishlegalcomplaints.org.uk/for-practitioners/crm-newsletter.aspx) will “flesh out” particular cases for this purpose. “Feedback from lawyers on what would be helpful (and what is not) would be valued,” he confirms.

It may already be the single gateway for complaints, but Stevenson believes his organisation could go further and provide a single reference point, including progress on individual cases. “For a consumer to understand the up-to-date process, and people involved, they would need to wade through perhaps three or more websites... If we put the customer first, then all working together on a single website that tracks the process through would be a clearer way to communicate with the public; we could work together to ensure our correspondence all included links back to the site, so consumers could see their complaint and understand the stage it is at. This could help reduce our call volume explaining the process, and make it more transparent. You might also signpost other services – Citizen’s Advice to help the consumer frame their complaint, or LawCare for solicitors anxious and worried about a complaint... Others may decide this is an awful idea, or have a much better one, but what we want to do is keep pushing discussion on how lawyers and consumers experience these systems in real life: a person-centred, rather than rule or institution-centred, approach.”

Paying out?

While Stevenson is well satisfied with the level of co-operation the SLCC receives from the profession (“The courtesy and respect is often humbling, when you know people are working hard and that complaints are stressful”), there are those few cases each year where an award in favour of a client is simply not paid, most typically where a firm has ceased trading. He floats the proposal that the profession should step in.

“Some will see the clients as being in the same position as other creditors, but one concern is that lots of publicly available literature has suggested that clients get better protection with a solicitor – it’s meant to be one of the selling points of seeking regulated rather than unregulated advice. For a modest amount of money I think there would be huge reputational benefit for the profession if clients are not left in the lurch, and this becomes part of one of the existing protection funds, something we’ve been suggesting for a while. We may even ask for powers to maintain a fund ourselves if that cannot be achieved. Again, all the costs of us chasing these debts are paid by the whole profession.”

If not quite the $64,000 question, it is still worth asking whether, if the SLCC achieved all the improvements mooted in the strategy paper, we would likely see a significant reduction in the annual levy. “The honest answer is we don’t know,” Stevenson replies. “It’s why one big focus in year one of our strategy is modelling the process in detail, and we’ve already worked with an external statistician who has helped other complaints bodies become more efficient. At some point in the curve faster resolution may cost more, not less. What I’d love is that we could get to the point where we consult with lawyers, consumers and government in a more sophisticated way on the levy. We would have evidence for a discussion that says we can deliver X level of quality and speed, at, purely hypothetically, £100, or Y level at £200; which should we aim for? At the moment it feels our balancing is ‘by default’ because we didn’t have the data, and that leaves people uncertain whether it’s as good as it could be. Now we have a number of years’ experience it’s the perfect time to start analysing those data sets and using that to inform our future planning.”

Finally, with consumers and practitioners often making opposing criticisms of the SLCC’s priorities, is it likely ever to satisfy both? “There are different issues, but we believe it is possible to balance them. We have an excellent board led by a hugely experienced chair, Bill Brackenridge. They, and the executive team, have wrestled with this issue. We know from research that consumer confidence drives spending, and also that effective complaints handling and redress improves confidence.

“Amazon and eBay did not create world-class complaint resolution platforms because of regulation or government – they did it to be the trusted trading platforms of choice, and consumer spend shows they have achieved that. Yes, it’s hard to balance interests; there are always compromises, and individuals will have their own views on that balance, but if we don’t meet both sets of needs we risk making the sector unsustainable, which would be to the detriment of all.”

“Focus on core role”: Society response

In an initial response to the consultation launch, Lorna Jack, chief executive of the Law Society of Scotland, commented: “Like the SLCC, we are keen to ensure that we have a robust regulatory system to ensure that solicitors meet the standards required of them and that effective action can be taken where these standards are not met.

“We will be discussing the proposals in the SLCC annual plan in further detail, but it will be essential that the SLCC focuses on its core role as the gateway for all complaints against legal practitioners, deals with complaints as quickly and efficiently as possible and investigates service issues as a priority. This is what the SLCC was established by the Scottish Parliament to do.

“Both the SLCC and the Society are committed to improving the regulatory system where possible under existing legislation.

“However, as we stated in our strategy published last year, we believe that new underpinning legislation governing the profession is needed.

“While many of the provisions of the Solicitors (Scotland) Act 1980 continue to work well alongside other pieces of legislation, including the Legal Profession and Legal Aid (Scotland) Act 2007 which saw the introduction of the SLCC, we believe the law needs to be modernised to take into account the changes there have been within the legal sector.

“Today’s legal market requires a modern and responsive regulatory framework to ensure that the solicitor profession can continue to deliver a world class service for clients and ensure that those using legal services are properly protected.”