Complaints commission conundrums

YOU might expect persistent critics of the legal complaints system to suggest processes are too complex, time-consuming and costly – but not the outgoing chief executive of the Scottish Legal Complaints Commission. Yet that is just what Rosemary Agnew feels as she leaves the post today to succeed Kevin Dunion as Scotland’s Information Commissioner.

Both Agnew and feisty SLCC chair Jane Irvine are blunt in their assessment: the current system should be much better. The 2007 Legal Profession and Legal Aid (Scotland) Act, which created the SLCC as a single gateway for complaints, was “too didactic and prescriptive”, says Irvine.

“I remain extremely frustrated at the level of service we provide to users.” Agnew makes a similar point: “We could do things much more efficiently if we had more freedom within the legislation that governs us. We find it a big constraint. If we wanted to do things better for everybody, we could – with more discretion than we currently have.”

Irvine, Scottish Legal Services Ombudsman in a previous life, says other complaints systems have that discretion – and bemoans the ugly language of the act: “We have to do the test of ‘Is a complaint in?’ and not frivolous, vexatious or without merit. They are very ugly words – I’d prefer to say I’ve looked at your complaint and can’t uphold it, not say ‘It’s totally without merit’.”

Agnew feels the language of the act “irritates people and upsets them”. She adds: “Complaints can be life-changing issues, but the language of our act makes us sound uncaring and we are not. The flipside is that if you admit a complaint, you are saying to a legal practitioner that it’s not totally without merit. That sets an expectation we will uphold it – and that isn’t necessarily true, it just means we are able to consider it.”

Both women would like to be able to say “Here’s a complaint, let’s work out how to best deal with it”. What they have is, Agnew says, “a very complicated set of eligibility tests to make a decision that something is in. That decision to keep it in [or not] adds complexity, levels of expectation and cost.”

Irvine adds: “We have to give a reason for why it’s in or out then, once it’s in, make a decision on it and if it goes to the board. It is difficult to do that all cheaply and correctly, to follow the processes and make sure it’s confidential. It could have been hugely simpler.”

She suggests the complication arose because the act had so many representations and amendments – and because the SLCC deals with service complaints and has to refer conduct issues back to the relevant professional body.

Despite their reservations, both women see positives in the act – because it offers the chance to use effectively mediation and empowers the legal profession.

Agnew says: “Some of the learning over time is how we help and support the profession. If they can approach complaint handling differently and prevent [complaints] coming to us, that’s something they didn’t have before. The profession is itself empowered far more than it used to be to resolve complaints in the first instance.”

So are we in a better position than before the SLCC was created? “You can’t say yes or no – there is no comparator,” says Agnew.

Irvine says it is time for stage two: “I think we will start operating in a nippier fashion, pushing our luck a bit more. We have set up and now we have to make it fly, but can we make it fly – or will we be kept on the ground because someone has nicked the propeller?” What is the prospect of the SLCC flying? “Debatable,” says Irvine bluntly.

She and Agnew understand any SLCC efforts to change the 2007 act need ministerial support – unlikely to be forthcoming any time soon. Agnew admits the SLCC’s relationship with the Scottish Government is “not sufficiently close”, but Irvine thinks it could be: “The government’s agenda is the same as ours – the service is for users, so how can we improve that? Clearly we are not on the government’s agenda; it has more important and bigger things floating around.

“We understand that. If you have brought in a really difficult act, would you start again after three years? We need to work imaginatively with what we have got – not stand in a corner and whine.

“This will mean pushing the act at times, testing it and saying we are doing this for users of service. We have to give them a good experience and keep looking at how we improve that. We have to keep a focus on users, not us. When they come through the door, are they getting a good service?”

Agnew hopes time will help: “We opened on 1 October 2008 but it wasn’t until October 2010 that transitional arrangements ended. There are things we have identified now that we could have been doing two years ago. But we do have a body of complaints now.”

What of the relationship with the Law Society of Scotland (LSS)? Its chief executive, Lorna Jack, has stated she was “concerned and surprised” about the increase in the SLCC levy. Can the two bodies not thrash things out to avoid public spats?

“There is no way I would decry the Law Society,” says Irvine. “We will come out of the red corner fighting if we have to, but if there is a constructive way of resolving things we will do that rather than having a spat.”

Agnew adds: “On an operational level, we get on well in co-ordinating how cases are moved from us to them. The act requires a level of liaison. Relations are cordial but we are all constrained by the act. If we didn’t test each other – if they didn’t occasionally say ‘Stop spending money’ and we didn’t say ‘We need to spend to achieve a good service’, it would not be a healthy relationship.”

The “baseline” report into LSS complaint handling by the SLCC last autumn offered a “starting point”, says Agnew – now the question is how to make the system simpler, faster and better for the user.

One frustration is the time spent explaining how the system works. “That reflects the inherent complexity,” says Agnew. “Staff explain things very carefully but the system itself is complicated. Legal practitioners struggle with why we operate the way we do – this is not a simple system for anybody.” Irvine, whose term as chair ends in December, adds: “We have been here since 2008 and it’s sometimes hard for us to understand.”

Agnew thinks the SLCC has done well in the circumstances: “In all of this, we have a culture of resolution. Given all constraints, we do some very good work; we have high standards, really good staff and investigators, and a board which works really well. We also have a missed opportunity to get more out of the talent we have.”

In practical terms, what would have made things better? “Having a management team in place well in advance of SLCC opening to do a lot of the preparatory work,” says Agnew. “It takes so much effort to set up and run an organisation from scratch at the same time – especially when what you had is ‘Here’s your act, off you go.’”

Irvine says the SLCC has a “very thorough” investigation process it can be proud of. “People are getting their problems looked at,” she says. “The frustration is the time, the effort and the cost it all takes.”