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


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 his 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 his 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 his 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 his 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 excludes him 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 his 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 he considers necessary for them to understand the reasons for his 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 his proposed decision he 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 his review based on evidence presented to him. He arrives at his decisions by taking into account legal principles, the relevant Code of Practice and what in his 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 his 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, he 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 his further consideration. He will also write to the complainant detailing his proposed decision (if you have accepted he 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 their decision to you and should they introduce any new factors which may persuade the Ombudsman to reconsider his judgement, you will be given the opportunity to comment again.

21. What awards will the Ombudsman make?

If the Ombudsman supports the complaint, he 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 complainants favour he will write to them in the first advising of his proposed decision. They 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 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 he will be in a position to send a copy of his decision to the complainants 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 accepted, the Ombudsman’s decision will no longer 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 accepted, the Ombudsman’s decision will no longer 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 he 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 he is 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 complainants 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 complainants 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 he 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, he 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 his 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 he declines 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 him 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 the 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.