What do the parties think about informal resolution? Research needed!

We know a bit about what ombudsmen and other complaint-handlers think about using informal resolution approaches. In our mapping study, The use of informal resolution approaches by ombudsmen in the UK and Ireland, we asked ombudsmen why they use informal resolution. The answers tended to fall into one of two camps: because they are required or expected to do so by statute, or because it is simpler and quicker. The latter responses included acknowledging that speed can be a benefit for parties as well as for the ombudsman. Some also mentioned the added benefit of informal resolution helping to maintain or rebuild relationships between the complainant and the complained-about.

For the most part, however, views of what parties themselves think about the processes ombudsmen use to handle their complaints are conjecture or are gleaned from customer satisfaction research, complaints feedback, and other sources that have some limitations in terms of self-selection of samples and how robust the findings are.

A closer look: legal complaints

An interesting view of how informal resolution can benefit complainants and complained about in different ways appears in the Annual Report published yesterday by the Legal Ombudsman (LeO). The report states:

We prefer to resolve complaints by brokering an agreement between the lawyer and the complainant. Therefore, our investigators attempt to settle complaints as amicably as they can, while bringing both parties (both the lawyer and the client) to a swift and mutually beneficial resolution. We call this “informal resolution”.

Where an informal resolution cannot be reached, either party may ask an ombudsman to make a final decision. At this stage the resolution will be based less on resolving the complaint amicably and more on what is deemed fair and reasonable.”

LeO reports that last year it resolved 39% of complaints informally (a slight decrease from the year before). Almost the same number (38%) were resolved by ombudsman decision. (The remaining 24% were either withdrawn or dropped by the complainant or discontinued by an ombudsman.) LeO expresses its disappointment that more complaints are not resolved informally:

This is not the outcome we had hoped for, but as we have said in previous Annual Reports, the complexity of legal complaints means that often people want to exhaust all options before accepting a decision.”

The figures suggest there are more financial remedies agreed at the informal stage (67%) than recommended by ombudsman decision (40%). Most financial remedies are less than £1,000 (30% of ombudsman decisions, and 40% of informal resolutions).

The difference between outcomes of the two processes is most marked in the remedy ranges of £1,000 to £19,999: 9% of ombudsman decisions were in this range, but 17% of informal resolutions were.

LeO states:

In our view, these figures suggest that complainants do as well when accepting an investigator’s recommendation and opt for an informal resolution as they do when insisting on an ombudsman’s decision. It may also reflect an increase in the number of lawyers offering reasonable remedies at the first tier, which, if true, is a positive development.’

Good for complainants – what of the complained-about?

But for lawyers the opposite might be true. As Legal Futures has pointed out, in the report LeO urges

lawyers to think twice before pushing for formal decisions rather than accepting informal resolutions to complaints, even though the figures showed that the outcome of the former was less likely to result in the lawyer having to pay the client some money.’

LeO suggests that for lawyers, the advantages of informal resolution are in saving time and avoiding reputational risks. The report states:

While lawyers might be tempted to hold out for an ombudsman’s decision, they should factor in the additional time and resource they will have to put into managing the complaint and accept that the customer is likely to walk away feeling even less positive about their firm with the increased risk to their reputation that this entails.’

Yet another risk to informal settlements for parties complained about has been highlighted in relation to the Financial Ombudsman Service (FOS). An article last autumn in the financial press highlighted a loophole arising from court ruling on a FOS case, relating to whether a complainant can pursue further redress against a financial firm after a FOS decision:

The problem lies in the word “award”, which specifically applies to final and binding orders issued by an ombudsman reviewing a case.

In order to go before an ombudsman, a Fos complaint will first be reviewed by an adjudicator which would recommend a resolution. It is only passed on if either party rejects the recommendation.

The article suggested that if parties agree to an informal settlement (by adjudicator recommendation), the complainant could still be free to pursue more redress in court. It advises financial advisers (those complained about) to insist on either an ombudsman decision (so getting a final award that doesn’t leave them open to being sued for more, but risking being ‘named and shamed’) or a settlement via adjudicator that makes it clear it’s in full and final settlement.

Seeking parties’ views

Our mapping study found that very few ombudsman schemes ask their users for feedback specifically about informal resolution, though one reported that its ‘customer satisfaction research consistently shows informal investigations are the most popular type of investigation’ with both parties. Service complaints from users can also provide feedback on the processes used to handle complaints. Another ombuds reported that feedback on its informal resolution processes is generally positive, although some complainants question whether it treats the respondent service provider too softly.

The lack of information is striking when, as we found, most ombudsmen use informal resolution processes, and some for as much as 80% of the complaints they handle. We note in our report of the mapping study that there are calls for greater consistency in customer satisfaction reporting among UK ombudsmen. We also note, however, that the EU ADR Directive does not appear to contain any specific requirement to introduce customer satisfaction surveys or to gather feedback on case-handling processes.

It seems clear that research is needed on what users of ombuds schemes – both complainants and complained-about – think of processes used for complaints, and the outcomes they achieve.

 


Ebbs and flows: Select Committee explores changing role of Housing Ombudsman, including use of informal resolution

In a pre-appointment hearing on 16 December 2014, the Communities and Local Government Select Committee questioned the preferred candidate for the role of Housing Ombudsman, a vacancy that opened up when the former ombudsman retired in October.

The recruitment process itself was unusual. There was a very short timetable (six weeks from advertisements to preferred candidate being identified). The Select Committee had not been involved in previous appointments but asked to hold a pre-appointment hearing in this case, citing its similar role with the Local Government Ombudsman. And the post is clearly a temporary one whose future is tied up with the Gordon review of the Parliamentary Ombudsman and the public services ombudsmen for England, announced by Oliver Letwin in July. All those aspects are of interest in themselves.

We’re interested particularly in the mentions of informal resolution that were made at the hearing. The candidate, Denise Fowler, is a civil servant, solicitor and former housing adviser. She has experience of working with the Housing Ombudsman, and she mentioned in her responses changes in the way the ombudsman approaches informal resolution. Our research on informal resolution found that the process changes she mentions were significant and not just a matter of terminology.

An extract of the session transcript is below, with commentary from our research findings:

Q22    Mark Pawsey: You told us that you worked at the Housing Ombudsman before, and that was 2000 to 2002, I think. Is that right?

Denise Fowler: Yes.

Mark Pawsey: That is 12 years ago now.

Denise Fowler: Yes.

Q23    Mark Pawsey: Regarding what you know about the Housing Ombudsman now, how is it different from what it was when you were there before?

Denise Fowler: What it looks like is that they have done a lot of work to move towards early resolution of complaints and real-time resolution of complaints.  From what I can see on the website, 87% of complaints are now resolved informally, which seems amazing.

Q24    Mark Pawsey: What would it have been previously?

Denise Fowler: I do not know what the exact figures were when I was there in 2000 to 2002.

Q25    Mark Pawsey: Was it significantly less than that?

Denise Fowler: Significantly less than that. We had an evaluation team that used to seek to try to work with landlords while issues were still going through the complaints procedure and try to resolve things earlier, and we had a procedure that had an informal and a formal determination, but it was a different procedure. That is one of the big changes.

[Commentary: Our research found that in 2013-14 the vast majority of complaints (5,004 out of 6,582 enquiries received) were closed by what the ombudsman calls ‘local resolution’. The change Fowler notes appears to reflect a significant change in process, with a number of complaints referred back for resolution between tenant and landlord. The ombudsman told us, in our research, “We will focus on helping the parties to reach resolution themselves through the available local procedures (primarily the landlord’s internal complaints procedures and also the designated persons).”

This contrasts with the scheme’s previous role in providing informal resolution itself. In the late 1990s, the Housing Ombudsman was perhaps the most innovative among ombudsmen in its use of informal resolution, or appropriate dispute resolution (ADR); a third of its complaints were either settled or rejected, but of the rest, it closed 20% of cases by informal conciliation, 25% by mediation, 6% by arbitration and 15% by binding decision.

With the implementation of the Localism Act 2011, the Housing Ombudsman changed the way complainants can access the scheme, envisioning a more active role in informal resolution by MPs, councilors and tenant panels. In practice, the Housing Ombudsman told us, “Our intervention will enable the parties to talk to each other to find a solution they can both accept. By being conciliatory and inquisitorial in our approach we can help bring about a better and longer-lasting solution to the problem and can help preserve the ongoing relationship between landlords and tenants. We will help the parties to reach a consensus or acceptable agreement which reflects the best possible outcome for all involved.”]

Q34    Chair: What about transparency?

Denise Fowler: That is exactly what I think should be happening. That is what I said about having that data and publishing it.

Q35    Chair: And publishing the results of investigations as well?

Denise Fowler: Yes. The results of investigations are done anonymously at the moment, aren’t they? There is an argument certainly if we get into formal investigations. There is an argument about informal resolution that it is helpful, to encourage informal resolution, to keep those anonymous, but in terms of the formal resolution, I think there is an argument for making those public.

Q36    Chair: One of the things that came up with the Local Government Ombudsman was that, where things were done informally and there were precedents that came out of a resolution, if it was simply not published in any form, that could not be used as a precedent in other cases.  Most people would not know about it.  Is there not an issue here to be looked at as well?

Denise Fowler: I think that is different from naming names.

[Commentary: Lack of transparency of informally resolved complaints has been a long-standing focus of criticism – for example, as noted by the Chair of this session, the CLG Select Committee noted concerns [http://www.publications.parliament.uk/pa/cm201213/cmselect/cmcomloc/431/43102.htm] about the Local Government Ombudsman’s use of mediation and informal resolution and stated: “the Commission needs to be completely clear how the distinct processes operate and differ as well as the criteria against which complaints are allocated to these resolution processes.”

Academics have also raised concerns about transparency of informal resolution by ombuds – for example, Richard Kirkham and Philip Wells in “The Ombudsman, Tribunals and Administrative Justice Section: Evolving standards in the complaints branch”.

Responding to the Law Commission’s 2010 consultation on Public Services Ombudsmen, Advice Services Alliance (ASA) said that the use of alternatives to investigation may reduce the transparency of the public services ombudsmen’s work. ASA conceded that such enhanced powers would be welcome if they delivered fair outcomes for complainants more promptly and suggested two key principles: transparency of outcomes and the right for a complainant to request an investigation.

On its website, the Housing Ombudsman publishes case studies, including those of informally resolved complaints.]

Following the pre-appointment hearing, on 18 December, the Select Committee endorsed Ms Fowler as candidate for the role. They did so on the basis that she retire from the civil service rather than take a career break, because of the need for the Housing Ombudsman to be – and to be seen to be – independent of central government. The committee’s report and minutes of the hearing are available here.

 


‘Friendly solutions’ – new report notes pros and cons of informal resolution

Putting It Right? – How EU institutions respond to European Ombudsman (Nov 2014) is a new report focusing on cases in which the institutions complained about (European Union bodies, offices and agencies) have accepted the Ombud’s proposals and learned from past mistakes.

The report includes information on the range of possible outcomes of complaints considered by the Ombud and the responses by the body complained about. The range of outcomes, shown below, describes an escalation from consensual to the most critical and directive:

  • cases settled by institution
  • friendly solution proposed by the Ombud
  • draft recommendations
  • critical remark
  • further remarks

The report notes that although friendly solutions can provide good outcomes for complainants, they are not effective at achieving systemic change:

“The main way the Ombudsman tries to achieve redress for the complainant is by proposing a ‘friendly solution’[6]. [footnote: 6 Such proposals are based on Article 3(5) of the Statute, which provides that “As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint.”] Such a proposal aims at a win-win outcome that satisfies both the institution and the complainant.

While friendly solution proposals may include a provisional finding of maladministration, the Ombudsman often considers it more constructive to avoid stating, even provisionally, that there could be maladministration. Rather, she identifies a problem or shortcoming in the institution’s behaviour that could be solved if the institution adopted the proposed friendly solution.

Where redress should be provided, it is best if the institution concerned takes the initiative, when it receives the complaint, to acknowledge the problem and offer suitable redress. This could take the form of compensation to the complainant or a sincere apology.

Whilst friendly solution proposals often achieve good outcomes for the complainant, they are rarely an effective instrument to achieve systemic change in the public interest.”

An institution can choose to reject a proposed friendly solution. In 2013, only 9 friendly solutions were accepted. There are, however, incentives to accept – the next stage of a complaint is a draft recommendation, and these are published:

“If the institution rejects a friendly solution proposal without good reason, or such a proposal is unlikely to be effective, the next step is usually what Article 3(6) of the Statute terms a ‘draft recommendation’. It is better for all concerned if the institution accepts a friendly solution than if it first rejects a friendly solution proposal and then accepts a draft recommendation. Draft recommendations addressed to the institutions are, simultaneously, published on the Ombudsman’s website. The Ombudsman may also choose to draw public attention to the case and to her efforts to obtain a solution, by issuing a press release at this stage on the maladministration identified. With a view to avoiding such publicity, institutions should seriously consider the added benefit, for their own work and for the image of the Union more generally, of accepting a friendly solution proposal rather than waiting for the Ombudsman to make a draft recommendation.”

The next stage for complaints which are investigated but where no friendly solution or recommendations are accepted is a ‘critical remark’. The report notes that “a critical remark does not constitute redress for the complainant. In many cases, a better outcome would have been for the institution concerned to settle the matter itself by acknowledging the maladministration and offering suitable redress.”

But the report also notes that complainants are not always right, “and the institution concerned is entitled to defend its position. About half of the cases that are not settled by the institution at an early stage eventually give rise to a finding of no maladministration.”

The Annex to the report gives examples of complaints closed by friendly solutions that were accepted by the EU institution.


Compare and contrast – informal resolution by sector

We are grateful to the Nuffield Foundation for providing us with some supplementary funding in order to follow up on some of the issues that arose when we launched our report on The use of informal resolution approaches by ombudsmen in the UK and Ireland last month. One of the pieces of work we want to do is to look at approaches used by schemes operating in the same sectors but in different jurisdictions to see what similarities and differences there are in the way they handle the same types of complaints.

For example, three organisations in our mapping study deal with complaints about financial services: the Financial Ombudsman Service (UK) (FOS), the Financial Services Ombudsman Scheme (Isle of Man) (FSOS) and the Financial Services Ombudsman’s Bureau (Ireland) (FSOB). They are vastly different in size: the FOS handles half a million complaints each year, while the Isle of Man scheme handles fewer than 300, with FSOB at nearly 8,000. All three schemes use informal resolution, but the extent to which they do ranges from 94% of complaints (FOS) to 22% (FSOS) down to <1% (FSOB). Both FSOS and FSOB use a process they call ‘mediation’, but these appear to be quite different.

Only one, the FSOB in Ireland, uses what we might call ‘true’ mediation: a process where an independent third party helps the parties in dispute to try to reach an agreement and in which the parties, not the mediator, decide the outcome.

Mediation is offered to both parties in all cases accepted by the FSOB. The scheme describes its mediation as a process where the parties to the complaint try to reach a solution through agreement with the assistance and support of a mediator rather than through an immediate investigation of the complaint and a decision from this Office on the complaint.” The mediator is one of three members of the FSOB staff who are trained and accredited in mediation. Mediations take place in person, with both parties attending, at the FSOB offices in Dublin. Parties are advised to set aside a full day to attend mediation in person, although in practice mediations are concluded within a few hours.

Mediation is voluntary for both parties, and the very small percentage of FSOB complaints going to mediation, even though it is the default offer of the scheme, suggests that buy-in by the parties is low.

We’d like to explore what these and other sector-specific schemes share, and how they differ.


New student rights to redress

domarmediation

Students at private universities are to get the right to take complaints to the sector’s independent adjudicator.

Times Higher Education reports that a clause applying to students in England and Wales was added this week to the Consumer Rights Bill currently making its way through Parliament. It will give students at private higher education institutions in receipt of Student Loans Company funding the right to take unresolved complaints to the Office of the Independent Adjudicator for Higher Education (OIA) – a right currently only given to students at publicly funded institutions and at the few private institutions that have voluntarily subscribed to the OIA. All students at private providers with at least one course designated for SLC funding will have access to the OIA. The change is intended to take effect on 1 September 2015.

Interestingly, this might also lead to more students having access to mediation for their complaints, if they…

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Report now available!

Our report on the mapping study of The use of informal resolution approaches by ombudsmen in the UK and Ireland  is now published.

We hope it will provoke feedback and encourage discussion on this area of ombuds practice, so do get in touch.

Many thanks to the Nuffield Foundation for its support of the research and to De Montfort University for its administration. And many thanks to all the ombuds, case handlers, policy officers and others who contributed to the study.


Newsflash – Ombud admits lying to researchers

We had our first launch of the Informal Resolution report last night at the Nuffield Foundation’s offices in London. It was a great turn-out, including representatives from Belfast, Dublin and Cardiff and a mix of academic researchers, policy makers and ombudsfolk. It wasn’t surprising that such an audience generated a lively discussion about the problems of terminology, what’s the right balance between informality and consistency, and whether informal resolution poses risks to justice and to the ombudsman ‘brand’.

We set out our findings in terms of what informal processes are called by the ombuds and complaint handlers who use them, how frequently they are used, what criteria are used to assess suitability, whether informally resolved complaints are published, and what training case handlers have in informal resolution.

A high point was a comment by one participant whose scheme is one of the 12 we had identified as not using informal resolution. He stood up and said, “I lied to the researchers! Now that I know what we’re talking about, I realise I do that…I just never called it that.”

He hadn’t lied to us, of course – but his comment illustrates the difficulties we faced with this project in trying to clarify what it is that ombuds and complaint handlers actually do when they are resolving complaints without investigation. He also highlighted what he thinks are the risks of formalising approaches whose success to some extent relies on their informality.

It’s clear that we have only managed to scratch the surface and produce a snapshot ‘map’ of a moment in time in ombudsmanry. If our report provokes further discussion, consideration and research on the actual work of ombuds, it will have been a success.

Now looking forward to our launch next week in Edinburgh!