The nature of a complaint

By David Buchanan-Cook, Head of Oversight and Communications

How would your organisation cope if a court ruled that hundreds of complaints you were actively working on had been unlawfully categorised when they were accepted into your process?

That’s the challenge we at the Scottish Legal Complaints Commission faced in the past year – read on to find out how we responded and how the decision of the Court about our approach to the dilemma may have relevance to your organisation.

While the Ombudsman Association boasts a wide range of organisations, there are a few particular things that set the Scottish Legal Complaints Commission apart.

As the gateway for all legal complaints in Scotland – whether complaints are about poor legal service or the conduct of a member of the legal profession, or about a solicitor or advocate (the equivalent of a barrister) – we are required to make a number of initial decisions about each complaint. One of the main decisions is about the nature of the complaint. If we decide a complaint is about poor service it stays with us for investigation. Complaints we decide are about potential misconduct are investigated by the professional bodies (the Law Society of Scotland and the Faculty of Advocates) but, in an Ombudsman-type role, we oversee how those investigations are undertaken…. with me so far?

Deciding whether a complaint is about service or conduct is not as simple as it sounds. We firstly have to identify what the individual issues are within each complaint and then make a decision on each of those. Historically we identified that many issues potentially contained elements of poor service AND related questions surrounding the conduct of the lawyer. We referred to these issues as hybrid issues.

Once we have made this ‘classification’ decision it is practically set in stone – our legislation states that the only way to challenge it is to appeal to Scotland’s highest civil court – the Court of Session.

After an appeal last year (connected to a previous appeal from 2015), the Court of Session decided that we could no longer say that an issue of complaint was both service and conduct (hybrid)  – it had to be one or the other.

That was all very well for that particular complaint – and indeed for how we classified subsequent complaints. But what about those hundreds of complaints with hybrid issues which were progressing through our system?

After taking legal advice, we concluded that we could not continue with those existing complaints in the knowledge that their classification had now been deemed ‘illegal’ by the Court. The logical thing to do was to re-categorise these complaints, so that all the hybrid issues were changed to be either conduct or service.

This was a huge upheaval and involved a great deal of extra work but, thanks to the dedication of our staff, we achieved all this re-work in record time. So … all’s well that ends well?

Well …. unfortunately not …

The Law Society of Scotland, after taking their own legal advice, considered that we did not have the legal power to re-categorise complaints. In December of last year the Society raised a Judicial Review against our actions and 15 separate appeals against individual re-categorisations.

After lengthy deliberations on the part of the Court, a judgment in our favour was issued on 9 June of this year. While we are clearly happy that the Judges agreed that what we had done was correct, the court ruling raised wider issues which may have implications for other complaint-handling bodies …. which is the real purpose of this article, so thanks for staying with me!

Most significantly, the ruling confirmed that despite the strict appeal process defined in our statute, it was “consistent with good public administration” for us (or any decision maker) to reconsider our previous decisions in light of the 2016 court ruling. We think that’s quite a radical step.

On a practical basis, there are still challenges. The difference between service and conduct is – and always will be – a blurred one.  However, the Scottish Government is currently conducting a review of legal complaints and regulation in Scotland and we hope this is one of the issues which that review will address.