Tackling complaints

Having worked in customer service in one form or another for pretty much the last 15 years, including spells in the Canary Islands then Madrid for the Foreign and Commonwealth Office, Matthew Vickers has honed his diplomatic skills. Navigating the third year of his tenure as chief executive of the Scottish Legal Complaints Commission (SLCC) – which starts in earnest this week – is likely to put them to the test, however.

Though still very much in its infancy – the SLCC was set up under the Legal Profession and Legal Aid (Scotland) Act 2007 to investigate complaints made by members of the public about the service received from a legal practitioner – Vickers is already the third person to hold the post on a permanent basis. Indeed, the last few years have largely been spent attempting to raise the non-departmental public body’s own performance.

Turning its attention to raising the profession’s game is the potentially tricky terrain the SLCC is now embarking on. After all, the Commission was, admits Vickers, not “very well trusted” by either the profession or the public in its early days. “If we’re looking to build trust and confidence in the legal profession we have to build trust and confidence in us as well and that has taken a little while but I think we’ve made some real progress there,” he says. Thirty-three per cent more eligible complaints were dealt with and closed by the SLCC in 2012-13 compared to the previous year (albeit in the context of an 11 per cent fall in complaints received).

The levy used to fund the body, which is meted out to legal professionals operating across Scotland, has been frozen after increases in the last two years, while certain categories of practitioner that attract the fewest complaints have been promised a “small reduction” in the SLCC’s 2014-15 budget. In truth, a small reduction is unlikely to appease longstanding frustrations from members of the profession.

Many in-house lawyers feel the charge “bears little reflection of the costs” they place on the SLCC, the Law Society of Scotland has said. The Faculty of Advocates has branded the levy “disproportionate” given the cost to advocates collectively per eligible service complaint in 2013-14 worked out at £72,663.

Vickers’ response is simple: their responsibilities extend beyond just service complaints, taking in oversight of other complaint-handling processes used by the two representative bodies plus the Association of Commercial Attorneys, outreach work with various legal forums and groups, as well as guidance and training for the profession.

Residential conveyancing accounts for around one in five complaints to the SLCC, leading the body to publish its first consumer guide earlier this year outlining the common pitfalls. Guides on family law and executories, wills and trusts, which between them accounted for almost a third of the SLCC’s business in 2012-13, are to follow later this year.

By fostering better complaint handling, the SLCC is helping build better businesses and therefore a better bottom line, says Vickers, his customer service hat now firmly on.

“It is not as simple as saying the whole cost is to do with how many complaints you’ve got – it is right that some element of our cost should be universal,” he adds. Like an insurance policy, “you can’t pick and choose when you’re involved”.

Still, against this backdrop, changes to the charging structure are likely. The SLCC has already expressed a desire to have those practitioners and sections of the profession that generate the lion’s share of complaints meet a higher proportion of their running costs. In effect, a ‘polluters pay’ that would bring the SLCC into line with other ombudsmen throughout the UK, says Vickers. The subsequent smoothing of any tension with the profession at large would no doubt constitute a desirable byproduct. “It is thinking about making sure that we’re using all of the levers that we can to drive the right behaviour,” says Vickers.

“At the moment our budget is funded by a levy that all legal practitioners pay and although there is a complaint levy that people pay at the end if the complaint is upheld against them, we’ve never had that as part of our budgeting process, I think because when we were set up it was on the basis that you wouldn’t want to put us in a position where to meet our budget we had to uphold a certain number of complaints.

“I understand that but I don’t think that’s really a risk. For us, it is about saying if you looked at that differently, you could perhaps take down the cost of the universal levy by putting up the cost of the complaints levy and bring it into your budget, so [that] effectively, more of the costs of the organisation are met by people who have had complaints upheld against them rather than being spread right across the profession. That would seem to be fairer on the vast majority of the profession who don’t have complaints upheld against them but it also means that there is a real incentive not to have a complaint upheld against you. It encourages people to engage with complaints properly.”

Whether another avenue being explored – publication of particular complaint decisions – will garner equivalent support is much more open to question. Unlike other oversight bodies, such as the Police Investigations & Review Commissioner, specific cases dealt with by the SLCC are not available for public consumption. “We’ve always done cases studies,” says Vickers. “The difference would be if we were a bit more systemic about it then it helps transparency. I think it does help the profession in terms of guidance and it just builds that confidence in us. It’s time that we look at doing it.”

Vickers acknowledges the profession will have “strong feelings” about such a step and underlines that consultation will take place to ensure “fair and sensible conclusions” are drawn from what the SLCC does publish. Questions around the extent of publication, for instance, and protocol should a complaint be investigated but not upheld are still to be ironed out.

Vickers seems reluctant to endorse the suggestion that such a change would amount to ‘naming and shaming’, though adverse publicity could provide an added incentive for practitioners to get their house in order. “For me, it’s more about [the fact] you can provide transparency for the public so they can see what is going on, and it really does help the profession having some clarity about what will we view as inadequate professional service.”

Are current arrangements lacking in transparency? To which question, Vickers’ diplomatic skills kick in. “I think there is an opportunity to do more, yes. Certainly, having the ability to see more of what we do getting published, I think it helps us become more transparent, yes.”

While discussions about this continue, work conducted alongside consumer groups and the relevant professional organisations that fall under the SLCC’s remit will form the basis for changes that, once approved by parliament, are expected to take effect next January. A consumer panel underpinned in statute will be the landmark change, says Vickers. “We have got the Faculty [of Advocates] and the Law Society who are very able to speak on behalf of the profession. We want to make sure that [legal] consumers have a real voice in helping us with policy thinking and what we should be looking at next.”

There is a more fundamental flaw, however, where secondary legislation will not suffice, suggests Vickers, echoing, in more circumspect language, the criticisms of inaugural SLCC chair, Jane Irvine, who warned the complaints regime created by the statutory framework was “cumbersome, with decisions on the eligibility of complaints being particularly problematic”.

“Our Act is unusual in that it is very prescriptive [in] setting out a complaint handling process,” he says. “That does mean that any time we want to change it, we have to change the primary legislation. If you look at the way that other organisations are set up, they’re not set up in a way where the Act tells you this is exactly how you will deal with complaints. That, at times, is unhelpful because it doesn’t help you be flexible and take account of learning. It means you’re having to come back to parliament the whole time to change your operating model – that is not the best way of doing it.”

Easier to enforce rule changes expected in the new year will likely see restrictions relaxed on the period of time people have to complain. As it stands, they have 12 months from when they become reasonably aware of questionable service to lodge a complaint. A total of 184 complaints were deemed ineligible last year, having been made outside time limits, up three per cent as a proportion of the number of complaints received.

“We’re having a discussion at the moment with the board around is our time bar, for example, set in the right place, the time limits that we have within which you need to make a complaint,” says Vickers. “At the moment, our view is that the time bar that we’ve had might well be too tight, so we think we should be giving people greater access by lengthening that.” This will go out to consultation over the summer, though Vickers does cite the typical three-year period adopted by other organisations.

Getting in the front door doesn’t count for much if the final decision is not upheld, though. Vickers does not see a “systemic problem” over the extent of the SLCC’s compensation powers – it can levy a maximum of £20,000 – rather, the issue is the respect certain parts of the profession shows them.

Indeed, the SLCC has warned of a growing number of instances where the failure of firms and appointment of trustees or judicial factors is culminating in delays or, in some cases, the absence of redress. “It doesn’t seem right that someone can sit through a process and at the end of it, where we say something has gone wrong, things need to be put right, and then they struggle to get the money back out of a judicial factor process or trustees and so on,” he says.

“We’re really encouraging the Law Society to have a look at this, so I know they’re doing some work on the Guarantee Fund [a fund of last resort to protect clients who have lost money], for example, having a look at that [and] about does that have a role to play. They [Law Society] do have a role to play as the regulator in looking at how do we protect the public from the dangers at times of… when a law firm gets into financial difficulty, how do we make sure the public don’t lose out... It’s all very well having a complaints system but you need to make sure that there is the true redress at the end of it.”

There is of course a financial incentive in all of this for both the profession and the SLCC. In 2012-13, Vickers and his colleagues took action in 49 cases to enforce compliance. Because a part of the profession failed to pay out on complaints upheld against it, the SLCC estimates it will have to dip into its reserves to the tune of £43,000 in the current operating year. The profession, likewise, has been denied a universal reduction to the general levy as a result, the SLCC said in the budget it laid before parliament in April.

Vickers’ focus has been on making the system that they’ve got work. Despite refusing to out-and-out criticise it, it would appear that he is not all that enamoured of it, however.

England and Wales have gone down the path of splitting up regulation and representation. Scotland hasn’t. Though the SLCC deals with complaints about service, the Law Society of Scotland, Faculty of Advocates and Association of Commercial Attorneys continue to deal with matters of professional misconduct or unsatisfactory conduct.

“We are all working hard to make the current system work and there is a lot that we have been working on with the Faculty and with the Law Society to make the system work as best as it can,” says Vickers.

“For me, there is still a question around this service and conduct distinction that we have. Do the public understand that and is that really in the public interest?

“I think there is more work that could be done around that… We split things up so we look after service, they look after conduct, and there is a question about do the public understand that, is that the most efficient way of doing things, is there perhaps a better way of doing it? There might be.”