McFadden: We are in a position to begin preparations
The Legal Ombudsman (LeO) is set to restart work towards publishing the decisions it makes in full, Legal Futures can reveal.
Having paused work on it in early 2022 because of LeO’s operational problems, chief ombudsman Paul McFadden said the improvements made since then meant “we are in a position to recommence our assessment of the options for, and pathway to, enhancing transparency through publishing decisions”.
At the moment, LeO publishes basic data about decisions – those made by ombudsman and not settled earlier in the process – on a rolling 12-month basis, updated quarterly.
A paper before the most recent meeting of the Office of Legal Complaints – the board that oversees LeO – said it was facing demands from “a number of stakeholders”, notably the Legal Services Board and Legal Services Consumer Panel, to map out a path towards publishing full decisions.
However, although LeO has made “significant progress toward reaching a far better standard of service and customer experience”, its operational performance still needed to be improved, “meaning the risk of destabilisation remains live and will need to be carefully managed”.
Mr McFadden went on: “However, we are in a position to begin preparations, with an emphasis on carefully managing implementation timeframes to minimise the operational impact.”
At the same time, the paper did not express great enthusiasm for the move, questioning the value of it as well as highlighting multiple challenges to implementation.
“Publishing full ombudsman decisions per se would not necessarily ensure the insights and learning from those decisions are communicated to legal sector stakeholders or consumers in any appropriate or effective way.
“Larger providers may have teams available to analyse ombudsman decisions for learning points; however, small or sole practitioners simply wouldn’t have the resource to do so.”
He added that, for the most part, “published decisions are not inherently helpful for consumers and are often accessed more frequently by other stakeholders such as the press and media who are looking to interrogate specific cases of interest”.
More positively, publication would provide “a fairer picture of complaints that have made it all the way to an ombudsman’s final decision”.
This all meant that enhancing LeO’s current work to share insights “could have far greater potential than publishing ombudsman final decisions to influence standards, behaviour and culture within legal services”.
Other challenges included the resources required – extra staff and new systems could cost approaching £1m – legal professional privilege and judicial reviews of decisions to publish.
In 2012 when LeO started publishing decision data, the legal team dealt with 13 challenges threatening judicial review or other litigation in respect of the proposed publication of data in the two-to-three-week window prior to publication.
In the first quarter following the publication policy going live, the legal team also dealt with 98 objections to publication.
The legal team currently deals with around 50 pre-action protocol letters and 12 judicial review claims a year.
This extra resource was likely to result in LeO being “unable to deliver much more by way of wider learning and insight during the period of development and implementation required”, Mr McFadden cautioned.
In terms of implementation, publishing decisions in their current format was a viable path forward and could be done in a minimum of 18 months, while undertaking work to improve their consistency and style in the longer term (ombudsmen are currently able to adopt their own styles).
Publishing summaries of decisions could be an alternative or interim step, but this would be “more resource intensive than publishing the full decision” given that LeO makes around 1,300 final decisions a year.
Mr McFadden went on: “If full publication of final ombudsman decisions cannot be achieved, the development of other transparency initiatives remains a key priority.”
The possibility of publishing decisions has been on LeO’s agenda for most of its existence but not come to fruition for various reasons, including resistance from the profession.
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