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Legal Services Bill [HL]


Legal Services Bill [HL]
Part 6 — Legal Complaints

64

 

The ombudsmen

122     

Appointment of the Chief Ombudsman and assistant ombudsmen

(1)   

The OLC—

(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.

(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

be a lay person.

(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).

(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,

and

(b)   

otherwise appropriate.

(9)   

Appointment as an ombudsman does not confer the status of Crown servant.

(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

the OLC.

35

(3)   

The OLC must publish any requirements specified for the purposes of

subsection (2).

(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

section for the year.

40

(5)   

In this section “financial year” has the meaning given by section 118(7).

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

65

 

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

(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

if—

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

circumstances.

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.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

66

 

128     

Parties

(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—

(a)   

an individual, or

(b)   

a person (other than an individual) of a description prescribed by order

10

made by the Lord Chancellor in accordance with a recommendation

made under section 130.

(4)   

The second condition is that—

(a)   

the services to which the complaint relates were provided by the

respondent to C;

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

respondent—

(i)   

in the respondent’s capacity as a personal representative or

20

trustee, or

(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

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Chancellor in accordance with a recommendation made under section

130.

(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.

(7)   

In this section—

“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.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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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.

(2)   

In this section—

10

“conveyancing partnership” has the meaning given by paragraph 11(5) of

Schedule 5;

“legal partnership” has the meaning given by paragraph 7(4) of that

Schedule;

“patent attorney body” has the meaning given by paragraph 14(7) of that

15

Schedule;

“trade mark attorney body” has the meaning given by paragraph 16(7) of

that Schedule.

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

subsection (1).

(3)   

An interested body must, before making a recommendation under subsection

25

(1)—

(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

(a)   

the OLC,

(b)   

the Board, or

(c)   

the Consumer Panel.

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.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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(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

omission of B.

(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

ombudsman.

(2)   

Scheme rules—

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

specified circumstances.

(3)   

Scheme rules made under subsection (1) may (among other things) make

provision—

(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

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

69

 

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

ombudsmen;

(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

before an ombudsman;

(h)   

for an ombudsman to award costs against the respondent in favour of

the complainant;

(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

following—

(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

other legal proceedings;

(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

it;

(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

ombudsman scheme.

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

with the rules.

 
 

Legal Services Bill [HL]
Part 6 — Legal Complaints

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(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

to that person.

(8)   

In this section—

“party”, in relation to a complaint, means—

5

(a)   

the complainant,

(b)   

the respondent, and

(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

Part.

(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

Ombudsman’s report).

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—

(a)   

the complainant;

(b)   

the respondent;

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

rules.

 
 

 
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