Complaint 1: the Agency’s advice about the scope of the legal aid certificate
21. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has done something wrong. We do this by comparing what should have happened with what did happen. We have done this and we have not seen any signs something has gone wrong in relation to the advice Ms V received from the Agency on 27 July 2020.
22. Ms V says the Agency gave her incorrect information about the scope of her legal aid certificate on 27 July 2020. Our ‘Principles of Good Administration’ say public bodies should give people information and advice which is ‘clear, accurate, complete, relevant, and timely’. The Agency ‘Strategy’ says its employees should provide customers with accurate information. In this case, the advice Ms V received from the Agency appears to have been accurate.
23. Ms V contacted the Agency because her solicitors wrote to her on 22 July 2020 to inform her they had to apply for an extension of her legal aid certificate. A day later, the Agency granted this extension. So, the Agency appears to have been correct when, during a phone conversation on 27 July 2020, it told Ms V her certificate covered the costs of preparing for her final hearing. This is in line with our principle of being open and accountable.
24. We can see it might have been helpful if the Agency had also explained the certificate had only recently been extended to include Ms V’s final hearing when they spoke to her on 27 July 2020. This would have helped her understand the discrepancy between what her solicitors had told her and what the Agency said during the phone conversation. We note the Agency appears to accept this in their response to Ms V’s complaint on 10 May 2022, which refers to a problem with their advice to her. However, on the basis the Agency gave Ms V correct information about the scope of her legal aid certificate during their phone conversation on 27 July 2020, we do not consider the Agency’s actions to have fallen below the standards referenced above.
Complaint 2: the Agency’s communication and complaint handling
25. Before we decide if we should investigate a complaint, we look at whether there are signs the event(s) complained about had a negative effect the organisation has not put right. We have done this, and we consider the Agency has already done enough to put right the impact of these events.
26. Ms V says after she received the Legal Ombudsman’s report on 24 February 2022, she sent multiple emails to the Agency, between 25 February and 11 April 2022, in which she asked the caseworker who spoke to her on 27 July 2020 to clarify why there were discrepancies between their advice and the Legal Ombudsman’s findings. The caseworker did not respond to Ms V’s queries, and Ms V complains she had to make a formal complaint to get a response to her concerns. She says this was inconvenient and left her ‘stuck in the complaining process’, which she found frustrating and upsetting.
27. We have reviewed the Agency ‘Strategy’ and ‘Complaints Procedure’. The Agency ‘Complaints Procedure’ does not provide guidance on communication between staff and complainants or customers outside the formal complaints process. However, the Agency ‘Strategy’ says its actions should be user-centred and employees should engage with customers in a proactive manner which meets their needs. This commitment echoes our ‘Principles of Good Complaint Handling’, which say organisations should handle customer concerns quickly and in accordance with their individual needs. Ms V’s complaint suggests the Agency’s communication about her concerns may have fallen short of these principles. So, this aspect of her complaint suggests there may have been maladministration (fault) in the Agency’s correspondence with her. Had the Agency responded to Ms V’s queries at an earlier stage, it may have been able to address her concerns outside the formal complaints process.
28. Ms V complained to the Agency on 11 April 2022. The Agency sent its first-stage response on 21 April 2022, in which it explained the caseworker Ms V had tried to contact was on leave when she emailed them. Ms V sent us emails she exchanged with a different Agency employee on 1 March 2022, in which they informed her there may be a delay in responding to her email due to annual leave. The Agency’s complaint response also says caseworkers will normally only engage in direct correspondence with customers if they have previously agreed to do so, and Ms V did not have such an agreement with the caseworker. The Agency has apologised their communication did not meet Ms V’s expectations and for any inconvenience or confusion this caused.
29. Ms V says the communication and complaint handling caused her to suffer an injustice in the form of frustration and inconvenience. Our 'Principles of Remedy’ say an apology and explanation is appropriate to put right this level of injustice. The Agency’s response to Ms V’s complaint is in line with our ‘Principles of Remedy’ because the action it has taken is suitable for the level of claimed injustice. So, the Agency has done enough to put right the events detailed in this aspect of Ms V’s complaint.
Complaint 3: the IFA’s decision
30. The law says we cannot investigate a complaint if a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Ms V to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
31. Ms V complains the IFA upheld the Agency’s decision to stop her legal aid certificate without properly considering the evidence she submitted in her appeal application. She says this led to the IFA incorrectly upholding the decision to withdraw her legal aid certificate. She says this prevents her from accessing legal representation for her Child Arrangement Order application hearing.
32. We have reviewed the correspondence between Ms V and the Agency in which the Agency tells her she can still access legal aid if she can find a solicitor to support her with a new legal aid application. Ms V is not happy with this response and says she wants the Agency to restore her existing legal aid certificate so she can transfer her funding to a new solicitor.
33. We are not able to instruct the Agency to reinstate Ms V’s legal aid certificate. So, we are not able to obtain her desired outcome. However, the courts may be able to instruct the Agency to restore her legal aid certificate if she applies for a judicial review (a court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body) of the Agency’s decision to withdraw it. This means Ms V has access to a legal route for her complaint through the courts. Section 5(2)(c) of the Parliamentary Commissioner Act 1967 says we will not investigate complaints if the complainant has access to a legal route, and when it is reasonable to expect them to pursue it.
34. Section 2.273 of our ‘Service Model Guidance’ says it is reasonable for a complainant to pursue a route to legal action if this is the only way they can obtain the outcome they are looking for. The only way for Ms V to obtain her desired outcome of the Agency restoring her legal aid certificate is through an application for judicial review. So, it is reasonable for Ms V to get legal advice in relation to this aspect of her complaint. This means we are not able to investigate Ms V’s complaint about her appeal to the IFA.