Covid-19 will hamper ombudsman turn-around, says new chair

Davies: I have to avoid overpromising

The coronavirus crisis will impede much-needed efforts to turn around the performance of the Legal Ombudsman (LeO), its new chair has warned in an interview with Legal Futures.

Elisabeth Davies said she was realistic about what needed to be done but did not want to overpromise.

Ms Davies took over as chair of the Office for Legal Complaints – the board that oversees LeO’s operation – on 1 April, a week after lockdown was introduced, and at the time of speaking had not had a chance to meet staff in person.

But she is not starting from scratch. She knows LeO well after chairing the Legal Services Consumer Panel between 2011 and 2016; and as the senior independent director of the Parliamentary and Health Service Ombudsman, she is familiar with other complaints schemes.

She has maintained strong links with the legal world too as a mediator, a trustee of the charity Support Through Court, a member of the Civil Justice Council, and a member of the advisory board of the independent review of legal services regulation conducted by Professor Stephen Mayson.

The role was a “real alignment” of her experience, knowledge and interests. She is paid £52,500 a year for a minimum commitment of 60 days, but expects to devote two days a week to the role.

It was advertised as a turn-around situation, and Ms Davies said “everyone’s agreed it’s not good enough”.

LeO is taking several months to deal with even simple cases – delays it would deprecate if caused by a lawyer – and there are over 3,000 cases waiting in the pre-assessment pool waiting just to be allocated for investigation.

The expectation that a full-time investigator should be able to close up to 7.3 cases per month is being missed by many; 35% of staff are closing fewer than five cases a month.

The crisis reached a head in March when the oversight regulator, the Legal Services Board (LSB), agreed with the concerns of the Law Society and Bar Council, and rejected LeO’s request for a 20% hike in its £12.3m budget (which is paid by a levy on all regulated lawyers).

In agreeing only to an inflation increase in the budget, the LSB described LeO’s performance as unacceptable.

It highlighted “a historical pattern of failure” to meet performance targets, meaning the LSB lacked confidence that LeO could deliver on its new ones to reduce delays.

This was “reinforced by the evidence that there is a weak culture in terms of leadership, change management, systems and governance”.

This lack of confidence seems to be shared by LeO’s 250 Birmingham-based staff, with a staff survey finding that more than 50% of employees wanted to leave in the next year, while half of new recruits leave in their first two years.

Where timing has worked for Ms Davies is that the chief ombudsman and LeO chief executive, Rebecca Marsh, has announced that she will leave in October to become property ombudsman.

Ms Davies says Ms Marsh has progressed the organisation in some ways, such as in dealing with old cases, introducing an online investigative tool, creating vulnerable consumer champions and more broadly improving its infrastructure and IT.

She concedes, however, that “it hasn’t been very visible” and has not manifested itself in the early stages of the complaints process in particular.

Her first action on taking the chair was to instigate a ‘learning exercise’ from the budget debacle and she is clear that restructuring LeO’s senior management – and particularly appointing a chief operating officer – is critical to improving operational capacity and capability.

The decision some years ago to combine the chief ombudsman and chief executive roles was “clearly right in terms of single point of leadership”, she explained, but it left operational gaps that need filling.

The next stages are to review LeO’s processes and service delivery model, as well as implement a significant ‘people plan’ – but Ms Davies stresses that this cannot all be done overnight.

“What I am trying to do is be both honest and realistic. The performance of LeO needs to be improved. I have to do that on a staged basis. I have to avoid overpromising.”

This is particularly given Covid-19. Many investigations have been delayed because of the disruption, with lawyers detached from their offices or on furlough often unable to respond within the usual timelines, while the pre-assessment pool is inevitably growing even bigger.

Ms Davies says it cannot be used as “an excuse for poor performance”, but the pandemic means the priority over the coming months is stabilising LeO’s situation. “Because of Covid-19, I don’t want to give a false impression of what I can achieve.”

LeO handles 6-7,000 complaints a year, but receives around 110,000 contacts in all. They are turned away for a variety of reasons, such as being outside LeO’s jurisdiction or the client has not first complained to their lawyer, but Ms Davies said the organisation could potentially provide more help to these people.

This links to the other part of LeO’s role in driving wider systemic improvements. Despite the operational problems, Ms Davies is determined to keep a firm focus on this as well. It is not, she insists, a case of either/or.

In principle she supports ideas such as taking the power to launch investigations without specific complaints, running thematic reviews to help lawyers improve their services, and extending LeO’s reach to handle complaints made against unregulated legal services providers.

But some of this is dependent on budget that LeO does not have.

More contentious still is last year’s consultation on expanding the limited publication policy so that LeO puts its full decisions in the public domain and produces annual reviews of the most complained-about lawyers and firms. Unsurprisingly, this did not receive a positive response from lawyers’ groups. A decision will be made soon.

She also recognises the need to bring staff along with her. While the profession wants to see change, LeO has “a staff that’s weary of change”.

There have been both leadership and process changes, she says, and “there was a time when people were not being managed effectively”. This led to individual performance issues that had to be dealt with and in turn damaged morale.

The new people plan looks to balance wellbeing and performance expectations. Ms Davies stressed the need for cultural change so that staff “can feel heard and valued”.

Covid-19 means LeO is unlikely to be where she wants it in a year’s time, but she said observers should expect to see “a much tighter grip” on operational performance.

The LSB said it approved the inflation budget in the expectation that LeO would seek an in-year variation of the figure, as allowed under the Legal Services Act 2007. But Ms Davies accepted it was not in a position to do that yet: “There will need to be a clear narrative and business case.”

As to where LeO will be at the end of her three-year term, Ms Davies said she would expect the pre-assessment pool to be in the hundreds – there obviously needs to be some demand exceeding capacity – and hoped that its key performance indicators would have been refined so that timeliness in handling complaints was seen as part of the quality of its work, rather than separate as now.

This would mean complaints being resolved within a reasonable time and leaving the complainant and the lawyer “satisfied” with the experience.

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