FAQs for Agents

If you receive a complaint

Your initial response

Investigating and dealing with a complaint

Your final response

When we receive a complaint

When the complaint is allocated

Outcome of the complaint

Outstanding fees and court

Awards

Further things to consider

Data Protection

1. 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. 

2. 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. The Ombudsman will use these timescales as best practice when reviewing complaints against those agents registered for redress.

 

3. 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 provide the complainant with 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.

Explain to the complainant that upon receipt of the written complaint, it will be acknowledged in writing within three working days. Explain that a full response will be issued within 15 working days, with the outcome of your initial investigation.

 

4. Should I notify my insurers?

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.

 

5. Who should acknowledge the complaint?

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

 

6. 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.

 

7. 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 the Ombudsman.

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.

 

8. I want to make a goodwill offer to resolve the complaint

The Ombudsman 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 TPO, the Ombudsman will come to her own conclusion as to whether or not the offer made represents appropriate compensation.

Sometimes, it may be possible for the Ombudsman to 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.

 

9. 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.

 

10. 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 TPO if they remain dissatisfied with your decision, and advise them of the timescale for bringing a complaint to TPO.

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.

 

11. Can you consider the complaint without a final viewpoint letter?

Under her 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, the Ombudsman 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 the Ombudsman to consider the dispute.

 

12. 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 the Ombudsman has 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, the Ombudsman will suspend her 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.

 

13. 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 the Ombudsman has reviewed the complaint.

If you are not prepared to do this and a court date is set within three months, the Ombudsman will suspend her review pending the court’s decision. The Ombudsman 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.

 

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

The Ombudsman’s Terms of Reference exclude her 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, and you wish to comment, please do so within your submission letter. The Ombudsman will take your comments into account during her review. 

 

15. Why do I need to send the company file?

Provision of your file upon request is an obligation of the Code of Practice and TPO Membership obligations.  

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.

 

16. 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, the Ombudsman can, where the law permits, provide copies of relevant documents not previously seen by the complainants which the Ombudsman considers necessary for them to understand the reasons for the decision.

 

17. 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.

 

18. 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 the Ombudsman has issued their 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.

 

19. How will the Ombudsman judge the complaint?

The Ombudsman carries out their review based on evidence presented to them. They arrive at their decisions by taking into account legal principles, the relevant Code of Practice and what in their opinion is fair and reasonable in the circumstances.

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

 

20. What happens if the Ombudsman supports the complaint?

If the Ombudsman has supported all or part of the complaint, they will write to you in the first instance. You will be given 14 days to either accept, or appeal the decision if you consider 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, the Ombudsman will respond advising you of the result of their further consideration. They will also write to the complainant detailing their proposed decision (if you have accepted they will simply write to the complainant).

The complainant is given 28 days in which to accept, not accept or make their own representation.

We will communicate the complainant's decision to you and should they introduce any new factors which may persuade the Ombudsman to reconsider their judgement, you will be given the opportunity to comment again.

 

21. What awards will the Ombudsman make?

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

Although the Ombudsman 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 the Ombudsman is 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.

The average award for letting and sales complaints in 2014 was £524 and £374 respectively.

 

Further information is contained within our Annual Reports.

 

22. What if the Ombudsman does not support the complaint?

If the Ombudsman does not find in the complainant's favour they will write to the complainants in the first instance advising of the Ombudsman's proposed decision. The complainant will be given 28 days in which to appeal if they can show that there is a significant error in fact or where they can produce significant new evidence that will have a material effect on the decision.

Having considered any representation, the Ombudsman will make a final decision and advise them accordingly.

If they are unable to appeal in accordance with the criteria detailed above, their legal rights will not be affected and they are free to pursue their complaint through the courts, as would you to pursue any claim for outstanding fees.  

 

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

If you do not agree with the Ombudsman’s 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, the Ombudsman will respond to you advising accordingly. At this stage, and having provided you with the opportunity to represent, the Ombudsman will be in a position to send a copy of their decision to the complainant for their consideration and response.

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

 

24. 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 the Ombudsman’s decision, the complainant’s legal rights are not affected and they will be free to pursue their complaint elsewhere.

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

 

25. 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 the Ombudsman’s decision the complainant’s legal rights are not affected and they will be free to pursue their complaint elsewhere.

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

 

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

In accordance with the Ombudsman’s Terms of Reference, the Ombudsman is 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 the Ombudsman can determine whether they are able to consider the complaint/s. In making this decision the Ombudsman will also take into consideration what was submitted to the court as evidence.

 

27. 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 15 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.

 

28. 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.

 

29. What if I do not pay the award?

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

 

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

If the complainant accepts the Ombudsman’s decision, they do so in full and final settlement of all the complaints upon which the Ombudsman has made a formal judgement. Therefore, the Ombudsman 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 the Ombudsman's findings or if the Ombudsman was unable to come to a judgment on the matters alleged within the complaint that they considered.

 

31. 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.

 

32. Can I request an oral hearing?

In the majority of cases the Ombudsman will resolve complaints on the basis of the written evidence submitted. However, the Ombudsman will consider requests for oral hearings made in writing, setting out the issues you wish to raise, so that the Ombudsman 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. 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 they decline to grant a hearing.

Please note that the Ombudsman is not able to treat orally presented accounts or ‘test’ evidence like a judge. The process of reaching a decision is not adversarial as the Ombudsman will not have the power to question or cross examine witnesses under oath.  A personal representation intended to give a more robust tone to an argument is not likely to be of value unless it is supported by documentary evidence (which should have been previously submitted to this Office). As the Ombudsman is unable to take evidence under oath any oral representation can only be considered as one person’s version of events and it would be inappropriate for the Ombudsman to form a view based purely on an unsupported statement. That is not to doubt that individual’s honesty or integrity but simply because the Ombudsman cannot decide a situation where it is one person’s word against another’s.

 

33. Publication of the decision

Our case reviews and the Ombudsman’s decisions remain confidential between you, the complainant and TPO. 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 the Ombudsman’s interim and annual reports and via other sources to assist agents to understand the common pitfalls and mistakes and encourage best practice.

 

34. 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:

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/contract/

https://ico.org.uk/media/for-organisations/documents/1068/data_sharing_code_of_practice.pdf

 

35. 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/  

 

36. 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 (eg: 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/