Death row/ombudsmen. Alternative dispute resolution

The client puts the home buyer's survey before her solicitor. “I had this done two years ago when I bought my current property,” she explains. “It didn't show any serious damp problems. But I commissioned another survey which revealed serious rising damp and wet rot. The second team of surveyors said this should have been picked up and that repairs would cost an estimated £3,000. What do I do?”

If that sounds familiar, it's because it was one of the four consumer-related problems taken to 80 firms of solicitors throughout the UK for the report on solicitors' advice in the October edition of Which?, the magazine of the Consumers' Association.

The problems encountered by this particular individual are representative of the problems facing many when they turn to lawyers for advice on these types of problems.

Few of the solicitors consulted mentioned the alternatives to potentially costly legal action. For example, if the surveyor used was a member of the Royal Institute of Chartered Surveyors, the institute's arbitration scheme could have been an option.

And as the surveyor worked for a building society, the solicitor's client could have been advised to go to the building societies ombudsman.

As it was, the Which? researcher was most commonly advised to get another survey done and threaten the original surveyor with legal action. This may have worked. But she could have spent lots of money going to court when the alternatives could have been as effective and cheaper.

The fact remains that ombudsman schemes are playing an increasingly important role in the whole area of access to justice. Typically, they are cheaper, quicker and simpler than going to court.

They allow consumers to pursue grievances without having to accept the relatively low awards limits of the small claims procedure. And they do not involve the risk of considerable legal costs.

They are also generally better than arbitration because consumers can pursue complaints without a company's agreement to an investigation and retain the option of court action, with the exception of the pensions ombudsman scheme. Ombudsmen are also more open to scrutiny.

Ombudsmen deserve a place in the pantheon of consumer heroes, the more so because they may also work to improve practices in their industry or sector of industry.

However, it will come as no surprise to find that not all ombudsman schemes meet the mark. Consumers' Association policy papers on financial and non-financial ombudsmen, soon to be published, will reveal some of the shortcomings in existing schemes.

These include gaps in the coverage of public and private sectors, and a lack of the necessary tools for some schemes to act effectively.

In particular, schemes may not be easily accessible; there is low consumer awareness of some schemes; some lack independence; little effort is made to get customer feedback; and there is considerably greater scope for the promotion of good practice.

In fact, ombudsmen themselves may need to be regulated if they are to retain consumer confidence as a system for obtaining real redress.

And, as ombudsmen become more common, it becomes increasingly important that the title is used only by schemes which genuinely offer the consumer an impartial and reasonably speedy judgment of a complaint.

Otherwise, consumers could be taken in by industry public relations exercises which are simply masquerading as ombudsmen. Ombudsmen should be worthy of the name and it should be clear to consumers that any scheme calling itself an ombudsman scheme offers real means of getting redress. The question is, how can these aims be achieved?

For a start, we would like to see moves to promote accessibility, awareness, independence, and good practice among ombudsmen schemes. Ideally, all eligible members should be compelled to join schemes and ombudsmen should be able to bring court actions in their own right.

Schemes should be straightforward and easy to use. Publicity is crucial; organisations should tell complainants of their right to take a case to the relevant ombudsman.

Ombudsmen must be, and be seen to be, independent. Some are already empowered to make such recommendations or representations as they think fit to the industry they cover. On the other hand, others are shying away from this encouragement of good practice. They shouldn't.

It's a long way from a solicitor's client complaining about a home buyer's survey to an ombudsman bringing cases to court on behalf of consumers.

But access to justice is more than access to the legal system, and the role of ombudsmen deserves to be recognised by all. Lawyers must be particularly aware of this.

Sheila McKechnie is director of the Consumers' Association. This article is a revised version of a feature which was first published in the Consumer Policy Review.