What will the Ombudsman do?

The Ombudsman will look into your complaint to see if he can resolve your dispute in full and final settlement. Sometimes, it may be possible to do so by mediation – by helping you and the Agent towards a settlement that you can both agree on. Mostly, he will examine both sides of the dispute and arrive at a written Decision. Where he supports your case, he may also consider an appropriate award of financial compensation.

Any award that the Ombudsman makes in your favour is to compensate you for any disadvantage you may have suffered and that he feels that you deserve in your particular case. It is not to punish the Agent. The Ombudsman has no remit to impose punitive fines on erring estate agents. He is not the Regulator of the profession of Estate Agency.

So, the Ombudsman will seek to resolve your dispute with the Agent; he may make an award of financial compensation where appropriate; and if you accept his award, you do so in full and final settlement of your dispute.

What cases can and cannot the Ombudsman deal with?

These are shown in the Consumer Guide. So, even though we have accepted your complaint, it may be that, on further examination, it concerns something that we cannot deal with.

Please note that the Ombudsman can only consider complaints against estate agents who are members of the OEA Scheme. He has no jurisdiction over the actions of solicitors, surveyors or financial advisors – even if they are associated with that estate agency.

What happens when you receive my Complaints Form?

We send a copy (and any attachments) to the Agent – and ask for his file and his version of events. Together, this will then become an OEA Case. 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.

What if the Agent has made me an Offer?

If the Agent has already made you any form of financial offer to settle your dispute, that offer lapses on referral of your complaint to this Office. The Ombudsman will come to his own conclusion as to whether or not that offer represents appropriate compensation for the complaint.

What level of proof do I have to provide?

Please note that, even though we have accepted your complaint, this does not mean that the Ombudsman will necessarily support you. That depends on the strength of your side of the case and what evidence there is to support it.

The Ombudsman needs to be convinced that any fault – in whole or in part – is caused by the Agent’s actions or inactions. It may be that the fault lies elsewhere – eg with solicitors, building societies, with the other party (buyer or seller), or even with you. That will be established in the Case Review.

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.

Where your allegation can be refuted by documentary evidence in the Agent’s records, the Ombudsman is unlikely to support your version of events. However, where the Agent is unable to provide documentary evidence to refute your allegation (where the Ombudsman believes he should be able to) he is likely to support your version of events.

How will the Ombudsman judge my complaints?

In carrying out his Review, the Ombudsman is guided largely by the following:

• Whether the Agent breached the OEA Code of Practice.
• The extent to which the Agent fell short of the following basic principles:
• An Agent's primary responsibility remains at all times to his client (the seller), whilst treating all those involved in the proposed sale or purchase, fairly and with courtesy.
• The Agent has a legal obligation to forward all offers received for a property to the seller, unless these are of an amount or type which the seller has specifically instructed the Agent, in writing, not to accept.
• Offers are accepted “subject to contract” and both the buyer and the seller can renegotiate the price or any conditions of the sale, and withdraw without penalty, at any time until exchange of contracts has taken place.
• I t is always the seller's decision, and not that of the Agent, to whom and at what price a property should be sold.

However, unlike in a court of law, the Ombudsman has no power to cross-examine witnesses under oath. If one party says “white” and the other says “black” – and there are no other reasonable grounds upon which the Ombudsman can safely come to a decision on the matter - he may well not be able to come to a formal decision.

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 the circumstances.

What happens if the Ombudsman supports my Complaint?

If the Proposed Decision is to support all or part of your complaint and to make an award of compensation in your favour, the Case Review with that decision is first sent to the Agent – who 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 – and you have 28 days in which to accept the decision, or make your own representation.

What if the Ombudsman does NOT support my complaint?

In that case, the Case Review containing that Proposed Decision will be sent to you first.

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

You can submit a representation within 28 days. However, the Ombudsman will only re-consider his Proposed Decision if:

• You can show that there was a significant error in fact that would have had a material effect on the decision.
• Or where you can produce significant new evidence that will have a material effect on the decision.

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 OEA Scheme is designed so that complaints 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.

If the Ombudsman supports me, what can he do?

Firstly, he can criticise the Agent for any failings or breaches of the Code of Practice. 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 to the OEA Council for their further action against the Agent (which could lead to dismissal from the OEA Scheme).

Secondly, and more importantly from your point of view, he can make you an award under the OEA Scheme. Please note that the purpose of this award is 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.

The Ombudsman can make awards up to £25,000. He will do so if he is convinced that you have suffered:

• Actual, proven financial loss as a direct result of actions or inactions by the Agent. Please note the words “actual” and “proven”.
• And/or undue and avoidable stress and inconvenience – over and above what is a stressful and inconvenient process at the best of times.

To give you an idea of the size of awards he makes, this has been the range of awards over the last three years:

£1-99 40
£100-499 241
£500-999 40
£1,000-2,999 22
Over £3,000 6

What happens if I accept the Ombudsman’s award?

If you accept the Award, you do so in full and final settlement of all the complaints against the Agent upon which he has made a formal judgement.

Can I accept the award and still go to the courts?

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 to that effect. The OEA 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 OEA Scheme. Therefore, if you wish to pursue your case through the courts, you must reject the Ombudsman’s findings in their entirety.

What if I don't accept the Ombudsman’s Decision?

You are free to pursue your complaint elsewhere, without prejudice from anything we have written. However, please note that the Agent will also be free to pursue any claim he may have against you for any outstanding commission fees.

So, if you reject the Ombudsman's Decision, you also give up your right to any award that he may have made to you.

Do you publicise Case Reviews?

No – our Case Reviews and the Ombudsman’s Decisions remain strictly confidential between you, the Agent and us. We will not disclose any of the details to anyone else. Whether you (or the Agent) make them public is your business.

What about the Agent’s commission fee?

If you are a seller, your contract with the Agent usually requires you to pay commission if the Agent introduces a buyer who goes on to complete the purchase of your property – irrespective of the level of service offered. If you refuse to pay, the Agent has a legal right to take you to court. Some Agents may be prepared to wait until the Ombudsman has reviewed the Case, but they do not have to. Accordingly, we encourage complainants to pay the commission invoice “without prejudice”. This will ensure that the Agent will not take any legal action against you in respect of non-payment of the commission fee – but it still means that the Ombudsman can give his viewpoint on the matter.

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.

What proportion of complaints are supported?

This varies from year to year. The Ombudsman’s decisions depend entirely on the merits of each case. Over the last three years, out of some 1,700 cases reviewed, he supported 63% and did not support 37%.