Legal Services Act 2007 (c. 29)

(The document as of February, 2008)

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(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.

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.

(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.

(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.

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--

(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

(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.

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 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.

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 been or could be dealt with under the disciplinary arrangements of the respondent's relevant authorising body.

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--

(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 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;

(b) the services to which the complaint relates were provided by the respondent to an authorised person who procured them on C's behalf;

(i) in the respondent's capacity as a personal representative or 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 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 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 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 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.

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,

(b) a body recognised under section 9 or 32 of the Administration of Justice Act 1985 (c. 61) (recognised bodies), or

(2) In this section--

"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 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 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 (1)--

(a) publish a draft of the proposed recommendation,

(b) invite representations regarding the proposed recommendation, and

(4) Where the Lord Chancellor receives a recommendation under subsection (1), 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--

(a) the OLC,

(b) the Board, or

131 Acts and omissions by employees etc

(1) For the purposes of this Part and the ombudsman scheme, any act or omission 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 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 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 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.

(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

(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--

(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 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;

(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 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 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 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 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;

(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 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 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 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.

(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 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 with the rules.

(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--
(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.

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;

(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 of rules under section 133(3)(a);

(d) the duties imposed on the Chief Ombudsman by section 123 (Chief Ombudsman's report).

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;

(2) The ombudsman must notify--

(a) the complainant;

(b) the respondent;

(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

(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.

(2) The rules must provide for charges payable in relation to a complaint to be waived (or wholly refunded) where--

(a) the complaint is determined or otherwise resolved in favour of the respondent, and

(b) the ombudsman is satisfied that the respondent took all reasonable steps to try to resolve the complaint under the respondent's complaints procedures.

(3) The rules may make provision as to--

(a) the circumstances in which a complaint is to be treated as determined or otherwise resolved in favour of the respondent (which may include circumstances where a complaint is settled, withdrawn or abandoned (or treated as withdrawn or abandoned by virtue of scheme rules));

(b) matters to be taken into account by the ombudsman for the purposes of subsection (2)(b).

(4) The respondent's complaints procedures are the procedures established by the 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.

(5) The rules may, among other things--

(a) provide for the OLC to reduce or waive a charge in such other circumstances as may be specified;

(b) set different charges for different stages of the proceedings on a complaint;

(d) provide that if the whole or any part of a charge is not paid by the time by which it is required to be paid under the rules, the unpaid balance from time to time carries interest at the rate specified in, or determined in accordance with, the rules.

(6) Any charge which is owed to the OLC by virtue of rules made under this section may be recovered as a debt due to the OLC.

Determinations under the scheme

137 Determination of complaints

(1) A complaint is to be determined under the ombudsman scheme by reference to what is, in the opinion of the ombudsman making the determination, fair and reasonable in all the circumstances of the case.

(2) The determination may contain one or more of the following--

(a) a direction that the respondent make an apology to the complainant;

(b) a direction that--

(i) the fees to which the respondent is entitled in respect of the services to which the complaint relates ("the fees") are limited to such amount as may be specified in the direction, and

(ii) the respondent comply, or secure compliance, with such one or more of the permitted requirements as appear to the ombudsman to be necessary in order for effect to be given to the direction under sub-paragraph (i);

(c) a direction that the respondent pay compensation to the complainant of such an amount as is specified in the direction in respect of any loss which has been suffered by, or any inconvenience or distress which has been caused to, the complainant as a result of any matter connected with the complaint;

(d) a direction that the respondent secure the rectification, at the expense of the respondent, of any such error, omission or other deficiency arising in connection with the matter in question as the direction may specify;

(e) a direction that the respondent take, at the expense of the respondent, such other action in the interests of the complainant as the direction may specify.

(3) For the purposes of subsection (2)(b) "the permitted requirements" are--

(a) that the whole or part of any amount already paid by or on behalf of the complainant in respect of the fees be refunded;

(b) that the whole or part of the fees be remitted;

(4) Where--

(a) a direction is made under subsection (2)(b) which requires that the whole or part of any amount already paid by or on behalf of the complainant in respect of the fees be refunded, or

(b) a direction is made under subsection (2)(c),

the direction may also provide for the amount payable under the direction to carry interest from a time specified in or determined in accordance with the direction, at the rate specified in or determined in accordance with scheme rules.

(5) The power of the ombudsman to make a direction under subsection (2) is not confined to cases where the complainant may have a cause of action against the respondent for negligence.

138 Limitation on value of directions under the ombudsman scheme

(1) Where a determination is made under the ombudsman scheme in respect of a complaint, the total value of directions under section 137(2)(c) to (e) contained in the determination must not exceed £30,000.

(2) For this purpose the total value of such directions is the aggregate of--

(a) the amount of any compensation specified in a direction under subsection (2)(c) of section 137, and

(b) the amount of any expenses reasonably incurred by the respondent when complying with a direction under subsection (2)(d) or (e) of that section.

(3) For the purposes of determining that total value, any interest payable on an amount within subsection (2)(a) of this section, by virtue of section 137(4), is to be ignored.

139 Alteration of limit

(1) The Lord Chancellor may by order amend section 138(1) in accordance with a recommendation made by an interested body under subsection (2).

(2) An interested body may, at any time, recommend to the Lord Chancellor that section 138(1) should be amended so as to substitute the amount specified in the recommendation for the amount for the time being specified in that provision.

(3) 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 (2).

(4) An interested body must, before making a recommendation under subsection (2)--

(a) publish a draft of the proposed recommendation,

(b) invite representations regarding the proposed recommendation, and

(5) Where the Lord Chancellor receives a recommendation under subsection (2), the Lord Chancellor must consider whether to follow the recommendation.

(6) 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.

(7) In this section "interested body" means--

(a) the OLC,

(b) the Board, or

140 Acceptance or rejection of determination

(1) When an ombudsman has determined a complaint the ombudsman must prepare a written statement of the determination.

(2) The statement must--

(a) give the ombudsman's reasons for the determination,

(b) be signed by the ombudsman, and

(c) require the complainant to notify the ombudsman, before a time specified in the statement ("the specified time"), whether the complainant accepts or rejects the determination.

(3) The ombudsman must give a copy of the statement to--

(a) the complainant,

(b) the respondent, and

(4) If the complainant notifies the ombudsman that the determination is accepted by the complainant, it is binding on the respondent and the complainant and is final.

(5) If, by the specified time, the complainant has not notified the ombudsman of the complainant's acceptance or rejection of the determination, the complainant is to be treated as having rejected it.

(6) But if--

(a) the complainant notifies the ombudsman after the specified time that the determination is accepted by the complainant,

(b) the complainant has not previously notified the ombudsman of the complainant's rejection of the determination, and

(c) the ombudsman is satisfied that such conditions as may be prescribed by the scheme rules for the purposes of this subsection are satisfied,

the determination is treated as if it had never been rejected by virtue of subsection (5).

(7) The ombudsman must give notice of the outcome to--

(a) the complainant,

(b) the respondent, and

(8) Where a determination is rejected by virtue of subsection (5), that notice must contain a general description of the effect of subsection (6).

(9) A copy of the determination on which appears a certificate signed by an ombudsman is evidence that the determination was made under the scheme.

(10) Such a certificate purporting to be signed by an ombudsman is to be taken to have been duly signed unless the contrary is shown.

(11) Neither the complainant nor the respondent, in relation to a complaint, may institute or continue legal proceedings in respect of a matter which was the subject of a complaint, after the time when a determination by an ombudsman of the complaint becomes binding and final in accordance with this section.

141 Enforcement by complainant of directions under section 137

(1) This section applies where--

(a) a determination is made in respect of a complaint under the ombudsman scheme,

(b) one or more directions are made under section 137(2), and

(2) An amount payable in accordance with--

(a) a direction under subsection (2)(b) of section 137 which requires that the whole or part of any amount already paid by or on behalf of the complainant in respect of the fees be refunded, or

(b) a direction under subsection (2)(c) of that section,

including any interest payable by virtue of subsection (4) of that section, is recoverable, if a court so orders on the application of the complainant or an ombudsman, as if it were payable under an order of that court.

(3) If the respondent fails to comply with any other direction under section 137(2), the complainant or an ombudsman may make an application to the court under this subsection.

(4) If, on an application under subsection (3), the court decides that the respondent has failed to comply with the direction in question, it may order the respondent to take such steps as the court directs for securing that the direction is complied with.

(5) An ombudsman may make an application under subsection (2) or (3) only in such circumstances as may be specified in scheme rules, and with the complainant's consent.

(6) If the court makes an order under subsection (2) on the application of an ombudsman, the ombudsman may in such circumstances as may be specified in scheme rules and with the complainant's consent recover the amount mentioned in that subsection on behalf of the complainant.

(7) In this section "court" means the High Court or a county court.

142 Reporting court orders made against authorised persons

(1) Where a court makes an order under section 141, it must give the OLC notice to that effect.

(2) Where the order is made against a person who is an authorised person in relation to any activity which is a reserved legal activity, the OLC must make arrangements to ensure that an ombudsman gives to each relevant authorising body, in relation to that person, a report which states that the order has been made.

(3) A report under subsection (2) may require the relevant authorising body to report to the ombudsman the action which has been or is to be taken by it in response to the report under subsection (2) and the reasons for that action being taken.

(4) If an ombudsman, having regard to any report produced by the relevant authorising body in compliance with a requirement imposed under subsection (3), or any failure to comply with such a requirement, considers--

(a) that there has been a serious failure by the relevant authorising body to discharge its regulatory functions, or

(b) if such a requirement has been imposed on the body on more than one occasion, that the relevant authorising body has persistently failed adequately to discharge its regulatory functions,

the ombudsman may make a report to that effect to the Board.

Reporting misconduct

143 Reporting possible misconduct to approved regulators

(1) This section applies where--

(a) an ombudsman is dealing, or has dealt, with a complaint under the ombudsman scheme, and

(b) the ombudsman is of the opinion that the conduct of the respondent or any other person in relation to any matter connected with the complaint is such that a relevant authorising body in relation to that person should consider whether to take action against that person.

(2) The ombudsman must give the relevant authorising body a report which--

(a) states that the ombudsman is of that opinion, and

(b) gives details of that conduct.

(3) The ombudsman must give the complainant a notice stating that a report under subsection (2) has been given to the relevant authorising body.

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