In this independent and unbiased guide we answer many of the questions frequently asked by dissatisfied clients of property professionals, about the dispute resolution service provided by The Property Ombudsman.
What is The Property Ombudsman?
The Property Ombudsman (TPO) is a redress scheme that was established in 1990. It now exists as one of two such schemes that are approved by the Government for property professionals. The other is the Property Redress Scheme (PRS).
Unlike either the Financial Ombudsman Service (FOS) or the Legal Ombudsman Service (LeO), which were both created by statute and are therefore subject to Parliamentary oversight, The Property Ombudsman is operated as a commercial entity, funded by the subscription fees paid directly to it by its members.
The purpose of the TPO scheme is to provide consumers and property professionals (which include estate agents, management agents, surveyors and valuers) with a swift and efficient mechanism for resolving client complaints, without the need to resort to legal proceedings and the cost which that can entail.
Who can make a complaint to The Property Ombudsman?
Use of the TPO scheme is not restricted to any particular category of complainant. This means that it may be accessed by private individuals acting in a personal capacity, private individuals acting in a commercial capacity or by businesses. However, the TPO Scheme will not consider complaints made by estate agents or letting agents about their fellow competitors.
What are the advantages of using the TPO scheme?
Some potential advantages of using the TPO scheme are that:
- It is provided free of charge to complainants
- It is operated independently of the parties
- It is not necessary to appoint a legal representative to use the scheme
- In contrast to court proceedings, it can be relatively swift
- The remedies available can be more creative than those offered by the courts
- The decision of the TPO is binding on the property professional
- From a procedural perspective, it is relatively user friendly
What are the disadvantages of using the TPO scheme?
Despite its laudable aims, the TPO scheme has received vociferous criticism from some of its users. Amongst the common complaints levelled against it are that:
- The process can be slow, taking many months to produce a decision
- As a result of being funded by its members, the TPO scheme is not entirely impartial
- The complaints handlers are lay individuals and do not possess the same level of competency as members of the judiciary
- Complaints can be passed repeatedly from one handler to another, resulting in a lack of continuity and confusion
- It is not usually possible to recover the costs of obtaining legal assistance or representation in relation to a complaint
- The complaints process does not circumvent the procedural rules that must be complied with when commencing a claim for professional negligence, meaning that valuable time can be lost if the complaint is rejected
However, it is worth noting that not only are users generally more inclined to publicise a negative experience than a positive one, but that the number of negative reviews that appear on websites such as Google and Trustpilot relate to only a small fraction of the total number of complaints processed through the TPO scheme each year.
What types of complaints does The Property Ombudsman handle?
The Property Ombudsman is able to consider complaints relating to the sale and letting of residential properties in England, Wales, Northern Ireland and the Channel Islands, including sales through auction or by Commercial and Business agents.
Complaints relating to properties located in Scotland are dealt with separately, by The Property Ombudsman Scotland. The TPO Scotland has been set up as a separate entity, its sole aim being to work with Scottish bodies to produce and maintain specific Codes of Practice for properties that fall under Scottish legislation.
The TPO scheme can also consider complaints about property managing agents if their actions having affected you adversely in some way, or they have failed to meet their specific obligations to you, as set out in the particular Code of Practice they have agreed to follow. Examples of this include failure to respond to queries promptly, failing to make adequate provision for emergency repairs out of hours or providing suitable guidance and failing to provide support to tenants who are being harassed, bullied or subjected to anti-social behaviour.
However, if your complaint concerns service charges or services provided on behalf of a landlord, it cannot consider those related grievances which fall within the jurisdiction of the First Tier Tribunal (Property Chamber) or the civil courts. Examples of these are increases in service charges and estate charges, the quality of management services provided or the fairness of charges applied under your lease or Property Transfer Deed (Form TP1).
Which property professionals does The Property Ombudsman cover?
The Property Ombudsman only has the ability to resolve complaints against professionals who have subscribed to the TPO scheme. Membership of the TPO scheme is entirely voluntary. Not all property professionals are members as it is not a legal requirement for them to be so, but many choose to become members.
However, estate agents dealing with residential properties in the UK and letting agents or property managers in England and Wales must join at least one of the Government approved redress schemes, one being the TPO Scheme (including TPO Scotland for property professionals dealing with the sales and letting of Scottish residential property), the other being the Property Redress Scheme. The Property Redress Scheme was launched in 2014 and is part of HF Resolution Limited which also runs the tenancy deposit scheme, My Deposits.
It is also worth bearing in mind that even if the professional against whom you wish to make a complaint is not a member of the TPO scheme, The Property Ombudsman may nevertheless be able to assist you with some or part of your investigations and complaint if:
- Your complaint arose before the property professional left the TPO scheme; or
- You think the professional may be trading illegally, in which case The Property Ombudsman may be able to assist you in establishing if this is the case.
A property professional will usually state within its retainer documents whether or not it subscribes to the TPO scheme. If it does subscribe, it may also display The Property Ombudsman logo on its website and elsewhere.
Do I also have to make a complaint to the property professional?
The Property Ombudsman can only consider those complaints which the consumer has first given the professional involved the opportunity to consider and resolve, without further action being necessary.
If you have not contacted the property professional directly to notify them of your complaint you should do that before contacting The Property Ombudsman about it. Clearly, if the professional is able to resolve your complaint satisfactorily, that could save you time, inconvenience and potentially some expense.
Any complaint made to the professional should be acknowledged by them within 3 working days. The complaint should then be investigated and a full response provided within 15 working days of the acknowledgement.
All property professionals registered with the TPO scheme have agreed to operate a complaints procedure and seek to resolve any complaints made within 8 weeks.
If you are unhappy with the property professional’s response you should write back and explain why that is the case. They will then consider your position and explain why they do or do not accept your view. If at that point you are still not satisfied with their response, you can make a complaint to The Property Ombudsman (assuming your complaint meets all the other criteria set out in this guide).
What is the best way in which to make a complaint?
If you would like to make a complaint it is often a good idea to ask the professional for a copy of their complaints procedure or to see if there is a copy published on their website. This should enable you to identify and comply with any specific requirements and avoid delays.
Otherwise, your complaint should be made in writing (either by letter or by email) and should explain clearly:
- The factual circumstances giving rise to your complaint
- What it is you are complaining about
- How you would like your complaint to be resolved
When setting out the nature of your complaint, it is often helpful to list your allegations individually and numerically. This should allow them to be more easily identified, cross-referenced and addressed.
If you have documents which clarify your complaint or support it, it is usually helpful to provide them at the same time – but do remember to retain the originals and keep them safe.
What are the time limits for making a complaint to The Property Ombudsman?
You generally have 12 months from the date upon which you receive your final response from the property professional in which to submit your complaint to The Property Ombudsman. This can be done online (if your supporting evidence is in an uploadable format), or via letter or email.
If more than 8 weeks have elapsed since you submitted your complaint to the property professional and if a final response has not been issued, or the property professional has not otherwise attempted to resolve matters with you, The Property Ombudsman may nevertheless be willing to assist you.
The Property Ombudsman is unable to consider complaints where the final response was issued more than 12 months before or, in cases where no final response was received, where the initial complaint was raised more than 12 months before.
How do I know if the response from the property professional is a ‘final’ response?
While there is no specific format required, a final response will often expressly state that it is intended to be so. Alternatively, this may be inferred where:
- The response from the property professional confirms the contact details and/or procedure for making a complaint to The Property Ombudsman; or
- The response from the property professional advises that it is not prepared to enter into any further correspondence.
It is worth noting that a formal response is not necessarily the same as a final response and in some cases, the parties can engage in further communication aimed at resolving the complaint over an extended period of time.
If there is any doubt about the status of the response that you receive from the property professional, and because of the time limits that apply, it may be prudent to seek unequivocal confirmation from the professional.
How much compensation will I receive from The Property Ombudsman?
If The Property Ombudsman upholds your complaint it will ask the professional concerned to put matters right, for example, by providing you with a formal apology.
The Property Ombudsman can also direct that the property professional pay compensation up to the value of £25,000, which includes any interest claimed. The purpose of any award is to properly compensate the complainant, not to punish the property professional.
Although the limit to the level of compensation that The Property Ombudsman can award is less than those limits that apply to the FOS and the LeO, it is still much higher than the financial threshold for claims dealt with in the small claims court, which is currently £10,000.
However, it is important to bear in mind that most awards are much lower; The Property Ombudsman states that it does not make awards in excess of £500 very often and most compensation awards are less than £500.
What if I don’t agree with The Property Ombudsman’s decision?
If you do not agree with the decision of The Property Ombudsman you are not obliged to accept it. If you do not, you are free to pursue your complaint by such other means as you see fit.
However, if you do choose to accept The Property Ombudsman’s decision, it is binding upon the property professional and it will be in full and final settlement of your complaint. This means that, once accepted, you are unlikely to be able to pursue any other claim or complaint either for the same loss or for the balance of any related loss not compensated by The Property Ombudsman’s award.
What alternatives are there to using The Property Ombudsman?
If the level of financial loss that you or your business have sustained is substantially greater than £25,000, the TPO scheme may present a much less suitable forum for resolving your complaint. This is particularly so if the complaint is of a technical legal nature and/or raises allegations of professional negligence.
Equally, if the time limits within which to pursue a complaint have expired, or if the TPO scheme has (for whatever reason) yielded an unsatisfactory result, you may also wish to consider other forms of dispute resolution.
If the complaint is in essence one of professional negligence, you may wish to initiate a claim for damages under the Pre-Action Protocol for Professional Negligence. Should it assist, further information about making a claim for professional negligence can be found in our guide: Claim for professional negligence: Your key questions answered
Alternatively, and if your complaint is of a more commercial nature, you may simply wish to commence court proceedings.
Further legal assistance
As professional negligence solicitors we act for clients nationwide, to resolve claims against a wide range of professionals, including claims against property professionals.
If you are considering bringing a claim for professional negligence, and if you believe that the value of your claim is likely to exceed £100,000, we would be happy to discuss the matter with you.
Most of our clients fund their claims under a private retainer and almost all our instructions commence on this basis. However, in some cases and where requested, we may then be able to offer an alternative form of funding.
To arrange an initial consultation with us, and in the first instance, please complete our Contact Form or email us at mail@pnclegal.com.
At PNC Legal there is much more than just the fact that we specialise exclusively in resolving claims for professional negligence that sets us apart from most other solicitors.
