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We send a copy (and any attachments) to the agent and ask for his file and his version of events. Only in a few instances will it be necessary for someone from this office to speak to you directly. A case officer will then undertake a formal review of your complaint, largely based on the documents from both sides, but he may also make other enquiries. The case officer will then present his recommendations in a written case review to the Ombudsman for his proposed decision. That proposed decision may be: to support your complaint; not to support your complaint; or to propose a settlement.
It will not be sufficient for you to merely make an unsupported allegation against an agent. The Ombudsman will need to be convinced that there is some reasonable substance behind any allegation. Any proof that you can provide will substantially help your case.
In carrying out his review of your complaint against an agent who has voluntarily subscribed to the TPO Code of Practice, the Ombudsman will be guided specifically by that Code in judging the complaint. For those agents who do not subscribe to the TPO Code of Practice, the Ombudsman will be guided by his best practice guidance issued to agents.
At the same time, the Ombudsman will be influenced by the evidence that he sees and will be guided by best practice. He will always try to use common sense and arrive at a decision based on what seems to him to be fair and reasonable in all the circumstances.
If the proposed decision supports all or part of your complaint and an award of compensation is made in your favour, the case review with that decision is first sent to the agent. The agent has 14 days to accept the decision or make a representation. If the agent submits a representation, this is considered and the case review may be amended as necessary.
The case review is then sent to you with the Ombudsman's proposed decision, together with a copy of the agent's submission and any relevant documents which you may not have previously seen. You will have 28 days in which to accept the decision, or make your own representation.
The Ombudsman's case review containing his proposed decision together with a copy of the agent's submission and any relevant documents, which you may not have previously seen, will be sent to you first. You will have 28 days in which to accept the decision, or make your own representation.
You can submit a representation within 28 days. However, the Ombudsman will only re-consider his proposed decision if:
If you are unable to produce either of these, we will not be able to help you further.
Having considered any representations, the Ombudsman will make a Final Decision.
Please note that the TPO Scheme complaints process is designed so that complaints received about an agent, start and finish with the Ombudsman. Having made a Final Decision, there is no avenue for appeal or further review of your complaint for either party within the Scheme.
Any request for an oral hearing will be considered by the Ombudsman (or his deputy), by reference to the nature of the issues to be determined and in particular to the extent to which the complaint raises issues of credibility or contested facts that cannot be fairly determined by reference to documentary evidence and written submissions. In deciding whether there should be a hearing and, if so, whether it should be in public or private, the Ombudsman will have regard to the provisions of the European Convention on Human Rights. The Ombudsman will give reasons in writing, if he declines to grant a hearing.
The Ombudsman can make awards up to £25,000. Such awards are to compensate you. Even though it will be paid by the agent you are complaining about, the award is not made to punish the agent, that is not the Ombudsman's role. An award will be made if the Ombudsman is convinced that you have suffered:
The Ombudsman can criticise the agent for any failings or breaches of the Code of Practice if it applies to the agent. This is normally confined to ensuring that he examines his procedures and supervision, so that such failings are reduced or eliminated. More rarely, such criticism can result in the Ombudsman reporting a serious breach of the Code of Practice to the TPO Council for consideration of their further action against the agent (which could lead to dismissal from the TPO Scheme). This can also apply to those agents who do not subscribe to the Code of Practice.
Alternatively, the Ombudsman may direct that the agent apologises to you.
...the purpose of The Property Ombudsman (TPO) scheme is to provide an informal method of review of a dispute to promote a resolution in full and final settlement. With this in mind, and whilst the Ombudsman takes into account legal principles, he does not adopt a legalistic approach but will come to a decision as to what he considers to be fair and reasonable in the specific circumstances of your case. As such, the proposed decision may be different to a legal decision made by a court.
Should you accept his decision, you will do so in full and final settlement of all of the issues on which he has reached a judgment. You will not be able to accept his decision and then pursue those issues through any other means.
You have the right to reject his decision in its entirety, in which case any award will lapse. Your legal rights will not be affected and you will be free to pursue your complaint through other channels, for example the court. Should you reject the decision, the Ombudsman's decision becomes invalid and cannot be used to support any further action that you may decide to take.'
If you choose to accept the compensatory award made by the Ombudsman, it is accepted in full and final settlement of all the complaints considered and on which a judgment has been reached and is binding on the member agent under the terms of their TPO membership agreement.
By acceptance of the award, you agree to the full and final settlement of your dispute with the agent and you will be asked to sign your agreement to that effect. The TPO Scheme (recognised by the courts as an Alternative Dispute Resolution mechanism) is designed to settle disputes. That is why (to the best of our knowledge), the courts rarely accept, and have never upheld, the case of a complainant who has previously accepted an award under the TPO Scheme. Therefore, if you wish to pursue your case through the courts, you must reject the Ombudsman's findings in their entirety.
If an agent does not pay an award made by the Ombudsman, they will be referred to TPO's Disciplinary and Standards Committee who can apply a range of sanctions. However, on average, less than one member agent a year fails to pay an award made by the Ombudsman.
In the rare occurrence where court action is required to recover an award, your ability to do so is derived from the fact that the Ombudsman's award is made and accepted by you in full and final settlement of all the complaints made against the member agent upon which the Ombudsman has made a formal decision and is therefore a debt due to you. The Ombudsman's decision is binding on the member agent by virtue of the agreement contained in the member agent's application to join the TPO scheme. The Contracts (Rights of Third parties) Act 1999 allows you to pursue payment of the Ombudsman's award which represents a full and final settlement made between the disputing parties. In effect the member agent has, by becoming a TPO member, agreed to the Ombudsman proposing a settlement on the agent's behalf and the court can enforce any payment attached to that settlement.
Should this course of action be necessary, further guidance will be provided to you by TPO.
The Ombudsman will always consider and actively promote and support any opportunities to settle the dispute quickly and this will involve both parties. This is normally done by a member of the office staff. However, you can be assured that any complaint reaching this office will be examined thoroughly and fairly and the decision is based entirely on the merits of the case.
No. Our case reviews and the Ombudsman's decisions remain strictly confidential between you, the agent and the TPO office. Details of complaints may, in accordance with the requirements of the Consumer, Estate Agents and Redress Act 2007, be provided to other approved redress schemes, other consumer redress schemes, the OFT or any other person exercising regulatory functions in relation to the activities of persons engaging in estate agency work. No personal details or details of specific aspect of the case will be given to anyone else outside of the TPO without your consent.
We do however, publish abridged and anonymised case summaries on our website and in the Ombudsman's quarterly and annual reports.
If you are a seller or landlord who is contracted to pay the agent's fees, but you refuse to do so, the agent has the legal right to take you to court. Some agents may be prepared to wait until the Ombudsman has reviewed your complaint, no agent is obliged to do so. If you do not pay the fees and the agent commences legal action, the Ombudsman will not continue with his consideration of your complaint. Accordingly, there is an expectation that you will pay the fee, or any uncontested part of it, on a 'without prejudice' basis if appropriate, to avoid legal action. If a court date has been set and is imminent, the complaint will be suspended until after the court action. At that stage, the Ombudsman will determine whether the complaint falls within his remit. If the court date is set for several months ahead, then the complaint will proceed and the Ombudsman will issue his decision in the usual way.
You should also be aware that we take note of the advantage to sellers who do not pay their account on time and this is reflected in any award they may receive.