Legal challenge and complaints

Members of the public and their representatives will often challenge the decisions or actions of an organisation by threatening to take legal action. In many cases the issues raised could be resolved through the complaints process and, if the complainant remains dissatisfied, a complaint to the Ombudsman. The Ombudsman service is free and so the costs for both complainant and the organisation are significantly less than if the matter was pursued in court.

The courts also expect parties to civil claims to have considered other means of resolving issues before litigation commences. The Ministry of Justice pre-action conduct and protocols for civil claims says parties ‘may negotiate to settle a dispute or may use a form of [alternative dispute resolution] including… Ombudsmen schemes’. The pre action protocol for judicial review also states that litigation should be ‘a last resort’ and both ‘the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered’ including making a complaint to the Ombudsman.

Organisations should ensure there are good working relationships between complaints functions and legal services to ensure members of the public are directed to the most appropriate route of redress for the issue being raised. Organisations may wish to consider adopting the following practices:

• Adopting an open approach to responding to threats of legal challenge at service level, in consultation with legal services, proactively offering to deal with the issue as a complaint rather than taking a defensive position on matters raised.
• Working with services to offer a resolution to matters raised where it is justified and appropriate.
• Signposting to the complaints process or the Ombudsman as an alternative dispute mechanism when responding to a pre-action letter from a complainant or their representative.