FAQs for Agents

If you receive a complaint
Your initial response
Investigating and dealing with a complaint
Your final response
Outstanding fees and court
When we receive a complaint
When the complaint is allocated
Outcome of the complaint
Awards
Further things to consider
Data Protection

If you receive a complaint

What counts as a complaint?

This could be something a complainant thinks that you may have done wrong, or something that you should have done but did not do. They may notify you of their complaint verbally or in writing.

Even if you believe there is no basis or justification for complaint, any complaint received should be treated seriously and in accordance with your in-house complaints procedure.

Why do I need an in-house complaints procedure?

You are obliged under your terms of membership to maintain and operate an in-house complaints procedure. This must be in writing and should explain how to complain to you and, if they remain dissatisfied, to the Ombudsman. The procedure must be made available to the complainant upon request.

Procedures may vary from agent to agent, however if you have agreed to abide by a Code of Practice there are specific timescales to adhere to. We will use these timescales as best practice when reviewing complaints against those agents registered for redress.

How should I deal with a verbal complaint?

If you receive a complaint either by telephone or in person, ensure that you make a record, noting important details such as the date and time.

At this point you should:

  • Give the complainant a copy of your in-house complaints procedure and request that the complaint is put to you in writing.
  • Tell the complainant the name of the individual to whom the complaint should be addressed. Explain that this is necessary to assist with the matter being investigated.

Follow and explain the timescales set out in our codes of practice.

Should I notify my insurers?

Yes, any complaints which might subsequently be referred to the Ombudsman should, at the earliest opportunity, be notified to your PI Insurers, as there may be a potential claim in line with the extension to the policy required to deal with any future award that may be made against you.

Your initial response

Who should acknowledge the complaint?

Ideally, the person who receives the complaint should acknowledge it.

What if I am unable to meet the required timescales?

If you are unable, for practical reasons, to respond within the required timescale, you should advise the complainant and provide an estimate of when you expect to be able to complete your investigation.

Investigating and dealing with a complaint.

Who should investigate?

Initially, a complaint should be dealt with by a senior member of staff not directly involved in the transaction.

If the complaint is not resolved, a second review should be carried out by the Managing Director or Senior Partner or Principal. Such person should have had no previous involvement in the handling of the complaint.

In the case of a sole practitioner firm, it is recommended that the Sole Practitioner should investigate all complaints. Where the Sole Practitioner has not been personally involved in the transaction, there will be a degree of impartiality in the in-house review. Where the Sole Practitioner has been directly involved, this must be clearly stated to the complainant in writing and subsequently (if necessary), to us.

We have seen complaints where final viewpoint letters have been issued prematurely by members of staff who are not authorised to do so. You should have safeguards in place to ensure that final viewpoint letters are issued only by authorised staff, in most cases the nominated complaints contact.

The complaints contact should inform us in writing if they wish to nominate additional or alternative contacts.

I want to make a goodwill offer to resolve the complaint

We will always encourage any opportunity to settle the dispute quickly. You may therefore wish to make a goodwill offer in full and final settlement of all complaints raised.

If the complainant accepts this in full and final settlement of all complaints, the Ombudsman will consider the matter settled.

If a complainant rejects the goodwill offer and refers the complaint to us, we will come to our own conclusion as to whether or not the offer made represents appropriate compensation.

Sometimes, it may be possible for us assist by mediation, helping you and the complainant towards a settlement you can both agree on. You do not have to accept this and if you choose, the complaint will proceed to a formal review.

What if the complainant does not engage with our complaint procedures?

If a complainant contacts us and we establish that they have not engaged with your complaint procedures, in most cases we will refer them back to you, allowing you to complete your internal investigation.

Your final response

What is a final viewpoint letter?

Once you have fully investigated a complaint, you should issue a final viewpoint letter to the complainant. This provides a written statement which clearly expresses your final view on all the complaints raised, and should include any goodwill offers made. It should also refer the complainant to us if they remain dissatisfied with your decision and advise them of the timescale for bringing a complaint to us.

A final viewpoint letter should therefore:

  • Fix the date when the complainant has completed your in-house complaints procedure;
  • Clarify the issues considered by you under that procedure;
  • Advise the complainant of the timescale for bringing a complaint to TPO.

The final viewpoint letter should be headed as such, so it is clear to the complainant that they have completed your procedure.

Find a copy of a final viewpoint letter in our complaints handling toolkit here.

Can you consider the complaint without a final viewpoint letter?

Within our Terms of Reference, if more than eight weeks have elapsed since the complaint was first made to you in writing, and it is evident that no response has been made, we can take a complaint forward to be reviewed.

On most occasions, we will contact you first to ascertain the situation. However, if you are unable to offer a response to the complaint, as explained above, a final viewpoint letter may not be required for us to consider the dispute.

Outstanding fees and court

What if there are outstanding fees?

In cases where there are outstanding fees, we will make the complainant aware that you have the legal right to legal action. We will suggest that they pay the fee, or any uncontested part of it, on a “without prejudice” basis.

If you are intending or are taking legal action to recover fees under a contract, we may contact you to ask if you are prepared to place this action on hold until we have reviewed the complaint.

Should you agree the case will be allocated for review on receipt of your company file.

If, however, you are not prepared to do this and a court date is set within three months, we will suspend our review pending the court’s decision. The Ombudsman would then only be able to consider aspects of the complaint not determined by the court.

Alternatively, if we consider that we have enough time to complete our process before the hearing is due, we may escalate the case for review.

What if a court date has been set?

If a court date has been set we may contact you to ask if you are prepared to place the action on hold until we have reviewed the complaint.

If you are not prepared to do this and a court date is set within three months, we will suspend our review pending the court’s decision. We would then only consider aspects of the complaint not determined by the court.

Alternatively, if we consider that we have enough time to complete our process before the hearing is due, we may escalate the case for review.

Can the Ombudsman still review the complaint if it has been to court?

In accordance with the Ombudsman’s Terms of Reference, we are not permitted to consider aspects of a complaint that a court has already ruled on.

In view of the above, we would need to be provided with a copy of the judgement so that we can determine whether we are able to consider the complaint/s. In making this decision we will also take into consideration what was submitted to the court as evidence.

When we receive a complaint

What if the complainant has added new complaints when referring the matter to TPO?

Our Terms of Reference exclude us from considering complaints that have not been subject to your in-house complaints procedure.

However, if you believe that the complainant has not already raised a particular complaint, and you wish to comment, please do so within your submission letter. We will take your comments into account during our review.

Why do I need to send the company file?

If you do not send your company file by the deadlines we will continue our review without it; using the evidence we have. By sending us your company file you will be providing us with more information which will help us see both sides of the complaint.

A list of documentation which is commonly used to review complaints is listed here.

If you are experiencing difficulties in submitting your file, please contact us for further guidance.

Does the complainant see a copy of the file?

Documents provided to this office will not be released unless it is fair and lawful to do so. However, we can, where the law permits, provide copies of relevant documents not previously seen by the complainants which we would consider necessary for them to understand the reasons for the decision.

Can I meet the resolution requested on the complaints form?

The complainant may request a resolution which you are willing to agree to or negotiate on. If so, you should contact us at the earliest opportunity to discuss this. We can relay your offer to the complainant and, where we consider appropriate, provide a recommendation that they accept the resolution in full and final settlement of all complaints raised.

When the complaint is allocated

What if I have further evidence?

You have a responsibility to provide all documentation relevant to your defence, at the time of submitting your company file.

If you have further evidence which has not been submitted at this stage, you should contact us at the earliest opportunity.

Please be aware, after we have issued our proposed decision they will not usually consider any documents at the representation stage that you could have submitted at the review stage, as this would not constitute ‘new’ evidence. It is therefore within your interests to provide all relevant documentation at the outset.

How will the Ombudsman judge the complaint?

We will carry out our review based on evidence presented to us. We arrive at our decisions by taking into account legal principles, the relevant Code of Practice and what in our opinion is fair and reasonable in the circumstances.

For agents who do not follow a TPO Code of Practice, we will make a decision based on our best practice guidance and TPO’s general membership obligations.

Outcome of the complaint

What happens when a proposed decision is made?

We will send the proposed decision to you and the complainant at the same time. You will be given 21 days to either accept or appeal the decision.

If you represent, there is no guarantee it will affect the final decision. In fact, representations normally only affect the final decision if:

  • You can prove we have made a significant mistake that makes a difference to the outcome – for example if we missed a complaint letter or misinterpreted the facts.
  • You have significant new evidence that will affect the decision.

If you provide a representation it will be necessary to allow the other party the opportunity to comment on the representation (within 14 days) and such decision will be taken into account before issuing a Final Decision to both parties at the same time.

What awards will the Ombudsman make?

If we support the complaint, we can make an award of compensation under the TPO scheme (to be paid by the agent).

Although we can make awards up to £25,000 (£5,000 for search providers), this amount is rare and only in cases where it is established beyond doubt that significant financial loss has been incurred. Most awards are for aggravation and are modest (so as not to be punishment of an agent).

Awards will be made if we are persuaded that the complainant has suffered:

•  Actual, proven financial loss as a direct result of the actions or inactions of the agent
•  And/or avoidable aggravation, distress and inconvenience.

Information on average awards can be found in our Annual Reports.

What if I do not agree with the Ombudsman’s decision?

If you do not agree with our proposed decision you are able to appeal if you can show that there is a significant error in fact or where you can produce significant new evidence that will have a material effect on the decision.

Having considered any representation, we will respond to you advising accordingly. At this stage, and having provided both parties with the opportunity to represent, we will be in a position to send a copy of our decision to both parties for their consideration and response.

Following on from this, should the complainant accept the decision, it will then become binding on you.

What if the complainant does not respond to the proposed decision?

If we have not heard from the complainant by the due date, we shall assume their non-acceptance and advise you accordingly. Any award will then lapse and the case will be closed. If you submitted an original company file this will be returned to you.

By not responding and effectively not accepting our decision, the complainant’s legal rights are not affected and they will be free to pursue their complaint elsewhere.

Having not been accepted, our decision will no longer be valid and cannot be used to support any further action.

What if the complainant does not accept the decision?

If the complainant does not accept the decision, we will write to you advising accordingly and the case will be closed. If you submitted an original company file this will be returned to you.

By choosing not to accept our decision the complainant’s legal rights are not affected and they will be free to pursue their complaint elsewhere.

Having not been accepted, our decision will no longer be valid and cannot be used to support any further action.

Awards

What to expect when an award is accepted

Upon receipt of a complainant's acceptance we will write to advise you accordingly. In accordance with the Ombudsman’s Terms of Reference we will ask that you make payment within 28 days. If the complainant has asked that the award be paid by bank transfer, we will ask that they contact you direct to provide their account details (for data protection reasons we are unable to pass these on for them).

We will request that you inform us when the award has been paid, so that we may close the case.

If there are outstanding fees or invoices, the award will only become payable if these have been settled in full within 14 days of the complainant's acceptance of the Ombudsman’s decision and award. Alternatively, they are able to offset the award against the monies owed.

How should the award be paid?

Unless we have received any specific instruction from the complainant regarding payment of the award, then this should be sent directly to them within 28 days.

What if I do not pay the award?

Failure to make payment will be reported to The Compliance Committee of the Property Ombudsman Board. They will consider your non-compliance and determine any disciplinary action in accordance with its terms of reference.

Can the complainant accept the award and still go to court?

If the complainant accepts our decision, they do so in full and final settlement of all the complaints upon which we have made a formal judgement. Therefore, we would not then expect them to pursue the matter any further. 

However, the complainant is free to pursue their complaint through the courts if they have rejected our findings or if we were unable to come to a judgment on the matters alleged within the complaint that they considered.

Further things to consider

How long does the review process take?

Our aim is to provide a proposed decision within 16-18 weeks of a complaint being accepted for review. However, these timeframes may differ depending on the number of complaints we are dealing with.

Can I request an oral hearing?

In the majority of cases we will resolve complaints on the basis of the written evidence submitted. However, we will consider requests for oral hearings made in writing, setting out the issues you wish to raise, so that we can consider whether they are material to the final decision.

The request for an oral hearing will be considered by reference to the nature of the issues to be determined and, in particular, to the extent which the complaint raises issues of credibility or contested facts that cannot be fairly determined by reference to documentary evidence and written submissions.

An oral hearing is not like a court hearing. We cannot treat evidence like a judge would. For example, we can’t question or cross examine people under oath. So we take what each party says as their version of events. This means you need to be able to back up what you say at the hearing with the evidence you send us, so it is not just one person’s word against another’s.

We use the European Convention on Human Rights to decide whether the hearing should be public or private.

If you would like an oral hearing, please write to The Property Ombudsman, Milford House, 43-55 Milford Street, Salisbury, Wiltshire SP1 2BP. Please explain your reasons so we can decide whether or not they could affect the final decision. If we don’t agree to an oral hearing, we’ll write to let you know why.

Publication of the decision

Our case reviews and decisions remain confidential between you, the complainant and us. Details of complaints may (in accordance with the requirements of the Consumers, Estate Agents and Redress Act 2007 and the Enterprise and Regulatory Reform Act 2013) be provided to other consumer redress schemes or any person/organisation exercising a regulatory function. No personal details or specific aspects of the complaint will be given to anyone outside of TPO without your consent.

We do, however, publish abridged and anonymised case summaries on our website and in our interim and annual reports and via other sources to assist agents to understand the common pitfalls and mistakes and encourage best practice.

Data Protection

What is the difference between data controller / data controller agreements and data controller / data processor agreements? 

There are two ways for organisations to share personal data.  The appropriate type of agreement will depend upon the relationship between the organisations.

Data Controller / Data Controller agreements

The relationship between TPO and its Members is classified as a data sharing arrangement between data controllers.  This means that both organisations determine the purposes for which and the manner in which the personal data is processed.  This relationship has been documented in our Data Sharing Agreement with Members.

Data Controller / Data Processor agreements

The other form of data sharing arises where a data controller shares data with another party that processes personal data on its behalf. Under data protection legislation, those organisations are known as ‘data processors’.

We recommend that if you have not done so already, you should be reviewing your data sharing arrangements with third party suppliers and service providers.

For more information, please see the ICO website:

What do I do if an individual asks to be forgotten?

Individuals have the right to request for their personal data to be deleted, also known as the right to be forgotten.  An individual has the right to request to be forgotten data if one of the following applies:

  • The personal data is no longer necessary for the purpose you originally collected it for.
  • The individual withdrew their consent to the data processing activities and there is no other legal justification for processing applies.
  • The data subject objects to processing for direct marketing purposes.
  • You unlawfully processed the personal data.

Steps to follow:

If you receive a request to be forgotten, you will need to consider whether you can agree to “forget” the individual by deleting their personal data from your organisation (both in electronic and paper format).   The answer will depend upon your relationship with that individual. 

For example:

  • Former client

    If the request is received from a former client, you will need to consider whether you can comply with their request or not.  When handling their request, you will need to consider why you hold their personal data and whether you have a legal justification for retaining their personal data.  It may be that you need to retain the personal data for the purposes of your data retention policy.  For example, it is not uncommon for organisations to retain certain information about a transaction with an individual on the basis that the information may need to be maintained due to regulatory requirements (eg: health and safety / as required by HMRC).   

    Commonly, organisations will want to retain personal data in order to defend future legal claims being brought against them – for example breach of contract / negligence.  Accordingly, the organisation would be entitled to rely on the statutory limitation period as the reason for refusing a request to be forgotten.

    Meanwhile, when considering the request, you may be able to reduce (but not delete completely) the amount of personal data that you hold about the individual.

  • Existing client

    Where the request is received from an existing client, you will be able to explain to the client the consequences of agreeing to comply with their request. In this case, you need to process their personal data in order to perform the contract with them to provide the services.  You would need to explain that if you were to exercise their request, you would no longer be able to continue to act for them. 

    It will then be up to the individual to decide whether or not they wish to continue to instruct you.  Nevertheless, in the event that you have provided a service to an existing client, you may not be able to agree to exercise the request to be forgotten entirely, based on the potentially legitimate purposes of defending future claims (as set out above).

  • Current / prospective / former employees

    A similar rationale will apply in the case of employees who seek to exercise their right to be forgotten – whether current, prospective or former.

  • An individual you send marketing materials to

    In the event that the request to be forgotten relates to marketing activities, we anticipate that the individual’s personal data will need to be deleted from your marketing mailing lists (“forgotten”).

    However, it might be that the individual is an existing / former client and therefore you will need to apply the above tests to establish whether you can agree to forget the individual in their entirety or whether in fact you have legitimate interests in retaining some of their personal data relating to the services delivered and the statutory limitation period.


For more information, please see the ICO website:

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/individual-rights/right-to-erasure/  

Establishing a retention policy - what do I need to do?

It is advisable to implement a document retention policy that determines the reason and period of retention for the personal data that you process within your organisation.

You need to:

  • Establish and adhere to standard retention times for categories of information held on the records of individuals (e.g: employees (former / current / prospective)); customers (former / current / prospective); suppliers (former / current / prospective) etc.

In doing so:

  • Base the retention times on business need taking into account relevant professional guidelines and a risk analysis approach;
  • Assess who in the organisation is responsible for the retention of the records;
  • Make sure no one retains information beyond the standard retention times unless there is a sound business reason for doing so;
  • If possible establish a computerised system which flags information retained for more than a certain time as due for review or deletion.

For more information, please see the ICO website:

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/documentation/how-do-we-document-our-processing-activities/