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|
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122 | Appointment of the Chief Ombudsman and assistant ombudsmen |
| |
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(a) | must appoint a person to act as Chief Ombudsman for the purposes of |
| |
the ombudsman scheme, and |
| 5 |
(b) | may, with the consent of the Chief Ombudsman, appoint one or more |
| |
other persons to act as assistant ombudsmen for those purposes. |
| |
(2) | The person appointed under subsection (1)(a) must be a lay person. |
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(3) | It is a condition of an appointment under subsection (1)(b) that the person |
| |
appointed must not during the appointment carry on any activity which is a |
| 10 |
reserved legal activity for or in expectation of any fee, gain or reward. |
| |
(4) | Each person appointed under subsection (1)(a) or (b) must be a person |
| |
appearing to the OLC to have appropriate qualifications and experience to act |
| |
as an ombudsman for the purposes of the ombudsman scheme. |
| |
(5) | In this Act a reference to an “ombudsman” (except in the expressions |
| 15 |
“ombudsman scheme”, “Chief Ombudsman” and “assistant ombudsman”) is a |
| |
reference to the Chief Ombudsman or an assistant ombudsman. |
| |
(6) | A person’s appointment as Chief Ombudsman ceases if that person ceases to |
| |
| |
(7) | The terms and conditions on which a person is appointed as an assistant |
| 20 |
ombudsman must specify the consequences of a breach of the condition |
| |
imposed by subsection (3). |
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(8) | Subject to that, a person’s appointment as an ombudsman is to be on such |
| |
terms and conditions (including terms as to the duration and termination of a |
| |
person’s appointment and as to remuneration) as the OLC considers— |
| 25 |
(a) | consistent with ensuring the independence of the person appointed, |
| |
| |
(b) | otherwise appropriate. |
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(9) | Appointment as an ombudsman does not confer the status of Crown servant. |
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(10) | In this section “lay person” has the same meaning as in Schedule 15. |
| 30 |
123 | Annual report of Chief Ombudsman |
| |
(1) | The Chief Ombudsman must prepare a report for each financial year on the |
| |
discharge of the functions of the ombudsmen. |
| |
(2) | A report under this section must comply with any requirements specified by |
| |
| 35 |
(3) | The OLC must publish any requirements specified for the purposes of |
| |
| |
(4) | As soon as reasonably practicable after the end of each financial year, the Chief |
| |
Ombudsman must give the OLC a copy of the report prepared under this |
| |
| 40 |
(5) | In this section “financial year” has the meaning given by section 118(7). |
| |
|
| |
|
| |
|
124 | Additional reports of Chief Ombudsman |
| |
(1) | The OLC may require the Chief Ombudsman to prepare and give the OLC, |
| |
within a specified period, a report in respect of any specified matter relating to |
| |
the functions of the ombudsmen. |
| |
(2) | In subsection (1) “specified” means specified in the requirement. |
| 5 |
Jurisdiction and operation of the ombudsman scheme |
| |
125 | Jurisdiction of the ombudsman scheme |
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(1) | A complaint which relates to an act or omission of a person (“the respondent”) |
| |
in carrying on an activity is within the jurisdiction of the ombudsman scheme |
| |
| 10 |
(a) | the complaint is not excluded from the jurisdiction of the scheme by |
| |
section 126, or by scheme rules made under section 127, |
| |
(b) | the respondent is within section 128, and |
| |
(c) | the complainant is within section 128 and wishes to have the complaint |
| |
dealt with under the scheme. |
| 15 |
(2) | In subsection (1) references to an act or omission include an act or omission |
| |
which occurs before the coming into force of this section. |
| |
(3) | The right of a person to make a complaint under the ombudsman scheme, and |
| |
the jurisdiction of an ombudsman to investigate, consider and determine a |
| |
complaint, may not be limited or excluded by any contract term or by notice. |
| 20 |
126 | Complaints excluded because respondent’s complaints procedures not used |
| |
(1) | A complaint is excluded from the jurisdiction of the ombudsman scheme if the |
| |
complainant has not first used the respondent’s complaints procedures in |
| |
relation to the complaint. |
| |
(2) | The respondent’s complaints procedures are the procedures established by the |
| 25 |
respondent, or which the respondent participates in or is subject to, in |
| |
accordance with regulatory arrangements (or licensing rules of the Board) |
| |
made in accordance with section 112. |
| |
(3) | Scheme rules may provide that subsection (1) does not apply in specified |
| |
| 30 |
127 | Complaints excluded by scheme rules |
| |
(1) | Scheme rules may make provision excluding complaints of a description |
| |
specified in the rules from the jurisdiction of the ombudsman scheme. |
| |
(2) | But they may not make provision excluding a complaint from the jurisdiction |
| |
of the ombudsman scheme on the ground that it relates to a matter which has |
| 35 |
been or could be dealt with under the disciplinary arrangements of the |
| |
respondent’s relevant authorising body. |
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|
| |
|
| |
|
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(1) | The respondent is within this section if, at the relevant time, the respondent |
| |
was an authorised person in relation to an activity which was a reserved legal |
| |
activity (whether or not the act or omission relates to a reserved legal activity). |
| |
(2) | The complainant (“C”) is within this section if C— |
| 5 |
(a) | meets the first and second conditions, and |
| |
(b) | is not excluded by subsection (5). |
| |
(3) | The first condition is that C is— |
| |
| |
(b) | a person (other than an individual) of a description prescribed by order |
| 10 |
made by the Lord Chancellor in accordance with a recommendation |
| |
| |
(4) | The second condition is that— |
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(a) | the services to which the complaint relates were provided by the |
| |
| 15 |
(b) | the services to which the complaint relates were provided by the |
| |
respondent to an authorised person who procured them on C’s behalf; |
| |
(c) | the services to which the complaint relates were provided by the |
| |
| |
(i) | in the respondent’s capacity as a personal representative or |
| 20 |
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(ii) | to a person acting as a personal representative or trustee, |
| |
| and C is a beneficiary of the estate or trust in question; or |
| |
(d) | C satisfies such other conditions, in relation to the services to which the |
| |
complaint relates, as may be prescribed by order made by the Lord |
| 25 |
Chancellor in accordance with a recommendation made under section |
| |
| |
(5) | C is excluded if, at the relevant time— |
| |
(a) | C was an authorised person in relation to an activity which was a |
| |
reserved legal activity and the services to which the complaint relates |
| 30 |
were procured by C on behalf of another person, |
| |
(b) | C was a public body or was acting on behalf of such a body in relation |
| |
to the services to which the complaint relates, or |
| |
(c) | C was a person prescribed, or of a description prescribed, as excluded |
| |
by order made by the Lord Chancellor in accordance with a |
| 35 |
recommendation made under section 130. |
| |
(6) | In subsection (4)(b) “authorised person” means an authorised person in |
| |
relation to any activity which is a reserved legal activity. |
| |
| |
“public body” means any government department, local authority or |
| 40 |
other body constituted for purposes of the public services, local |
| |
government or the administration of justice; |
| |
“relevant time”, in relation to a complaint, means the time when the act or |
| |
omission to which the complaint relates took place. |
| |
|
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|
| |
|
129 | Pre-commencement acts and omissions |
| |
(1) | For the purposes of section 128 a person is to be regarded as an authorised |
| |
person in relation to an activity which is a reserved legal activity, at a time |
| |
before section 125 comes into force, if the person was at that time— |
| |
(a) | a person of the kind mentioned in paragraph 2(4) of Schedule 15, |
| 5 |
(b) | a body recognised under section 9 or 32 of the Administration of Justice |
| |
Act 1985 (c. 61) (recognised bodies), or |
| |
(c) | a legal partnership, a conveyancing partnership, a patent attorney body |
| |
or a trade mark attorney body. |
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| 10 |
“conveyancing partnership” has the meaning given by paragraph 11(5) of |
| |
| |
“legal partnership” has the meaning given by paragraph 7(4) of that |
| |
| |
“patent attorney body” has the meaning given by paragraph 14(7) of that |
| 15 |
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“trade mark attorney body” has the meaning given by paragraph 16(7) of |
| |
| |
130 | Orders under section 128 |
| |
(1) | An interested body may, at any time, recommend to the Lord Chancellor that |
| 20 |
the Lord Chancellor make an order under section 128(3)(b), (4)(d) or (5)(c). |
| |
(2) | An interested body must, if requested to do so by the Lord Chancellor, |
| |
consider whether or not it is appropriate to make a recommendation under |
| |
| |
(3) | An interested body must, before making a recommendation under subsection |
| 25 |
| |
(a) | publish a draft of the proposed recommendation, |
| |
(b) | invite representations regarding the proposed recommendation, and |
| |
(c) | consider any such representations which are made. |
| |
(4) | Where the Lord Chancellor receives a recommendation under subsection (1), |
| 30 |
the Lord Chancellor must consider whether to follow the recommendation. |
| |
(5) | If the Lord Chancellor decides not to follow the recommendation, the Lord |
| |
Chancellor must publish a notice to that effect which includes the Lord |
| |
Chancellor’s reasons for the decision. |
| |
(6) | In this section “interested body” means— |
| 35 |
| |
| |
| |
131 | Acts and omissions by employees etc |
| |
(1) | For the purposes of this Part and the ombudsman scheme, any act or omission |
| 40 |
by a person in the course of the person’s employment is to be treated as also an |
| |
act or omission by the person’s employer, whether or not it was done with the |
| |
employer’s knowledge or approval. |
| |
|
| |
|
| |
|
(2) | For the purposes of this Part and the ombudsman scheme, any act or omission |
| |
by a partner in a partnership in the course of carrying on, in the usual way, |
| |
business of the kind carried on by the partnership is to be treated as also an act |
| |
or omission by the partnership. |
| |
(3) | But subsection (2) does not apply if the partner had no authority to act for the |
| 5 |
partnership and the person purporting to rely on that subsection knew, at the |
| |
time of the act or omission, that the partner had no such authority. |
| |
132 | Continuity of complaints |
| |
(1) | The ability of a person to make a complaint about an act or omission of a |
| |
partnership or other unincorporated body is not affected by any change in the |
| 10 |
membership of the partnership or body. |
| |
(2) | Scheme rules must make provision determining the circumstances in which, |
| |
for the purposes of the ombudsman scheme, an act or omission of a person |
| |
(“A”) is, where A ceases to exist and another person (“B”) succeeds to the whole |
| |
or substantially the whole of the business of A, to be treated as an act or |
| 15 |
| |
(3) | Rules under subsection (2) must, in relation to cases where an act or omission |
| |
of A is treated as an act or omission of B, make provision about the treatment |
| |
of complaints under the ombudsman scheme which are outstanding against A |
| |
at the time A ceases to exist. |
| 20 |
(4) | Scheme rules must make provision permitting such persons as may be |
| |
specified in the rules to continue a complaint made by a person who has died |
| |
or is otherwise unable to act; and for that purpose may modify references to the |
| |
complainant in this Part and in scheme rules. |
| |
133 | Operation of the ombudsman scheme |
| 25 |
(1) | Scheme rules must set out the procedure for— |
| |
(a) | the making of complaints under the ombudsman scheme, and |
| |
(b) | the investigation, consideration and determination of complaints by an |
| |
| |
| 30 |
(a) | must provide that a complaint is to be entertained under the |
| |
ombudsman scheme only if the complainant has made the complaint |
| |
under that scheme before the applicable time limit (determined in |
| |
accordance with the scheme rules) has expired, and |
| |
(b) | may provide that an ombudsman may extend that time limit in |
| 35 |
| |
(3) | Scheme rules made under subsection (1) may (among other things) make |
| |
| |
(a) | for the whole or part of a complaint to be dismissed, in specified |
| |
circumstances, without consideration of its merits; |
| 40 |
(b) | for the reference of a complaint, in specified circumstances and with the |
| |
consent of the complainant, to another body with a view to it being |
| |
determined by that body instead of by an ombudsman; |
| |
(c) | for a person who, at the relevant time (within the meaning of section |
| |
128(7)) was an authorised person in relation to an activity to be treated |
| 45 |
|
| |
|
| |
|
in specified circumstances, for the purposes of the scheme and this Part, |
| |
as if that person were a co-respondent in relation to a complaint; |
| |
(d) | about the evidence which may be required or admitted and the extent |
| |
to which it should be oral or written; |
| |
(e) | for requiring parties to the complaint to attend to give evidence and |
| 5 |
produce documents, and for authorising the administration of oaths by |
| |
| |
(f) | about the matters which are to be taken into account in determining |
| |
whether an act or omission was fair and reasonable; |
| |
(g) | for an ombudsman, in such circumstances as may be specified, to |
| 10 |
award expenses to persons in connection with attendance at a hearing |
| |
| |
(h) | for an ombudsman to award costs against the respondent in favour of |
| |
| |
(i) | for an ombudsman to award costs against the complainant or the |
| 15 |
respondent in favour of the OLC for the purpose of providing a |
| |
contribution to resources deployed in dealing with the complaint, if in |
| |
the ombudsman’s opinion that person acted so unreasonably in |
| |
relation to the complaint that it is appropriate in all the circumstances |
| |
of the case to make such an award; |
| 20 |
(j) | for the purpose of facilitating the settlement of a complaint with the |
| |
agreement of the parties to it; |
| |
(k) | for specified persons to be notified of complaints, determinations and |
| |
directions under the ombudsman scheme. |
| |
(4) | The circumstances specified under subsection (3)(a) may include the |
| 25 |
| |
(a) | the ombudsman considers the complaint or part to be frivolous or |
| |
vexatious or totally without merit; |
| |
(b) | the ombudsman considers that the complaint or part would be better |
| |
dealt with under another ombudsman scheme, by arbitration or by |
| 30 |
| |
(c) | the ombudsman considers that there has been undue delay in the |
| |
making of the complaint or part, or the provision of evidence to support |
| |
| |
(d) | the ombudsman is satisfied that the matter which is the subject of the |
| 35 |
complaint or part has previously been dealt with under another |
| |
ombudsman scheme, by arbitration or by other legal proceedings; |
| |
(e) | the ombudsman considers that there are other compelling reasons why |
| |
it is inappropriate for the complaint or part to be dealt with under the |
| |
| 40 |
(5) | No person may be required by scheme rules— |
| |
(a) | to provide any information or give any evidence which that person |
| |
could not be compelled to provide or give in evidence in civil |
| |
proceedings before the High Court, or |
| |
(b) | to produce any document which that person could not be compelled to |
| 45 |
produce in such proceedings. |
| |
(6) | Scheme rules may authorise an ombudsman making an award of costs in |
| |
accordance with rules within subsection (3)(h) or (i) to order that the amount |
| |
payable under the award bears interest, from a time specified in or determined |
| |
in accordance with the order, at a rate specified in or determined in accordance |
| 50 |
| |
|
| |
|
| |
|
(7) | An amount due under an award made in favour of a person by virtue of |
| |
provision made under subsection (3)(g), (h) or (i) is recoverable as a debt due |
| |
| |
| |
“party”, in relation to a complaint, means— |
| 5 |
| |
| |
(c) | any other person who in accordance with scheme rules is to be |
| |
regarded as a party to the complaint; |
| |
“specified” means specified in scheme rules. |
| 10 |
134 | Delegation of an ombudsman’s functions |
| |
(1) | An ombudsman may delegate to a member of the OLC’s staff appointed under |
| |
paragraph 13 of Schedule 15— |
| |
(a) | any function of the ombudsman in relation to the making, investigation |
| |
or consideration of a complaint; |
| 15 |
(b) | any other function conferred on the ombudsman by or by virtue of this |
| |
| |
(2) | Nothing in subsection (1) applies to the following functions— |
| |
(a) | the function of determining a complaint; |
| |
(b) | the function of deciding that a complaint should be dismissed by virtue |
| 20 |
of rules under section 133(3)(a); |
| |
(c) | the Chief Ombudsman’s power to consent to the appointment of an |
| |
assistant ombudsman under section 122; |
| |
(d) | the duties imposed on the Chief Ombudsman by section 123 (Chief |
| |
| 25 |
135 | Notification requirements |
| |
(1) | This section applies where a complaint— |
| |
(a) | is excluded from the jurisdiction of the ombudsman scheme under |
| |
section 126, or by virtue of scheme rules made under section 127; |
| |
(b) | is dismissed, or referred to another body, by virtue of scheme rules; |
| 30 |
(c) | is settled, withdrawn or abandoned (or treated as withdrawn or |
| |
abandoned by virtue of scheme rules). |
| |
(2) | The ombudsman must notify— |
| |
| |
| 35 |
(c) | any relevant authorising body, in relation to the respondent, notified of |
| |
the complaint in accordance with rules within section 133(3)(k), |
| |
| and, in a case within subsection (1)(a) or (b), must give reasons for the |
| |
exclusion, dismissal or referral. |
| |
136 | Charges payable by respondents |
| 40 |
(1) | Scheme rules must require respondents, in relation to complaints under the |
| |
ombudsman scheme, to pay to the OLC such charges as may be specified in the |
| |
| |
|
| |
|