Questions asked by member firms

‘Signposting’ consumers the scheme
Bringing complaints to the scheme
What if I provide some information to you in confidence?
New information has come to light
Decisions
Why don't you have a hearing in every case? I thought this was necessary to comply with human rights law.
A quick guide to hearings
At what stage would a hearing be held?
How does Ombudsman Services: Property decide whether a hearing is needed?
Surely I’m entitled to my day in court, to get a fair hearing?
Where are hearings held?
What happens at a hearing?
What happens after a hearing?

‘Signposting’ consumers to the scheme

When a member decides to join Ombudsman Services: Property a contract document called a deed poll is signed.  By signing this, the member agrees to abide by the Terms of Reference of the scheme. These Terms of Reference describe the rules of the Service.  For example, it is a requirement for a member to make clear that it has a Complaints Handling Procedure (CHP) and is a member of the Ombudsman Services: Property, on the first occasion of sending property particulars and/or when terms of engagement are agreed. Then, if a consumer  makes a complaint, the member must provide a copy of the CHP which must include details of Ombudsman Services: Property.

It is also a requirement for estate agents who are members of the service to display information about Ombudsman Services: Property  in their offices and on their websites.

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Bringing complaints to us

If a complaint does not meet our standard definition for acceptance the ombudsman may still be able to accept it for investigation.

The ombudsman has discretion to decide whether a complaint is within jurisdiction and should be looked at.  For example, the ombudsman would usually only accept a complaint if a member had failed to resolve a complaint within eight weeks or a deadlock letter had been received.  However, if it is clear that the consumer has made every effort to complete the member’s complaints procedure and the eight week period has yet to pass, the ombudsman may exercise discretion and accept the complaint for investigation at that stage.

Equally, the ombudsman has the discretion to refuse to accept, or to terminate a complaint, if it is considered that the complainant has no reasonable prospect of success, recovery or redress from the member being complained about.

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What if I provide some information to you in confidence?

If you believe that some information should be kept confidential between you and us, you should mark that information clearly and tell us why you think we should not pass it to the consumer. We will consider your request – but we may not agree to it, unless there is a strong case for confidentiality, such as security reasons.

We take the same approach with information the consumer gives us. By signing our complaint form, the consumer authorises us to exchange information with you about their complaint.

We may publish case studies and information about complaints but we do not release the names of the individual consumers or businesses involved.

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New information has come to light

You can provide new information to the ombudsman at any time and it will be considered, so long as it relates to the issues being investigated.  The ombudsman will decide, when reviewing the complaint whether the new information makes a difference to the provisional conclusion.

We will have regard for your rights of privacy, and we do not automatically copy to both sides all the information we have on a case. But in general, you should assume we may disclose to the consumer any information you send us about the complaint. We will certainly need to summarise information that is central to our decision, as well as disclosing other information where we think it appropriate.

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Decisions

When we have all the information from the consumer  and the member about the complaint, our investigation process will begin.  An investigation officer will look at both sides of the story and make a provisional conclusion.  This report gives our initial findings and our reasons for making them.  It is sent to both parties at the same time.  If both parties are happy with the provisional conclusion as a binding settlement to the dispute, this becomes final and any remedy recommended will become enforceable.  If, upon receipt of the provisional conclusion, either party tells us that it has any comments, such as new information about the complaint or that we have made a significant error in fact which has a material effect on our decision, the complaint is passed to an ombudsman.  Any information should be sent to us in writing so that an ombudsman can consider it when making the final decision.  It may be that the ombudsman may have to seek further comment from the other party. When we have finished this process, we will send you a copy of the ombudsman’s final decision. All final decisions will be made by an ombudsman.

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“Why don't you have a hearing in every case? I thought this was necessary to comply with human rights law.”

We are an alternative to the court system. Our aim is to resolve disputes as quickly, cost-effectively and informally as we can.

We can nearly always get to the bottom of complaints – and recommend solutions or make decisions – on the basis of the information, facts and arguments that each side gives us in writing and on the phone.

Some people might want their "day in court" – to personally cross-examine the other party and challenge the ombudsman in person. But we do not operate as a traditional court of law. We do not have the power to compel the attendance of witnesses, take evidence on oath or test evidence by cross-examination.

It's only very rarely that we consider oral hearings necessary or helpful. In the small number of cases where we decide to hold an oral hearing, the ombudsman who conducts the hearing decides what procedure to follow and what questions to ask. The ombudsman ensures that neither side is intimidated or disadvantaged by the process.

The costs involved in organising and holding hearings is another reason why this is not a standard part of our process.

We are satisfied that our approach to oral hearings complies with human rights requirements.

For more details see our special fact-sheet.

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A quick guide to hearings

This is a quick guide to how hearings fit into our complaints handling process.  It explains how we decide whether a hearing is needed and what a hearing involves.  The guide is primarily for consumers and members who have complaints with Ombudsman Services: Property.

We resolve most disputes between consumers and businesses without the need for face-to-face meetings (formally called ‘hearings’).  We only hold hearings if a complaint cannot be settled by looking at written information and asking questions and we think a hearing will help resolve issues that are relevant to the ombudsman’s final decision.

At what stage would a hearing be held?

If we decide to hold a hearing, it will usually take place:

• After the investigator has looked at both sides of the complaint and sent the consumer and the member a copy of the provisional conclusion; and
• Before an ombudsman has made a final decision on the case. The final decision is the last stage of our complaints handling process.

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How does Ombudsman Services: Property decide whether a hearing is needed?

An ombudsman is under no obligation to hold a hearing.  If either side in a dispute would like a hearing, they must put their request to us in writing.  They need to explain why they want a hearing and what points or evidence they plan to raise.

The request will be referred to an ombudsman, who will consider the issues that the person requesting the hearing wants to raise.  The ombudsman will only agree to a request for a hearing if, in his or her view, the case cannot be fairly decided on the basis of the documentary evidence and the material that the two sides have provided in writing or orally (usually over the phone).

If the ombudsman turns down a request for a hearing, he or she will write to the person who made the request.  The ombudsman will explain why they do not consider a hearing would help in reaching a final decision on the case.

Sometimes, even if neither side has requested a hearing, an ombudsman may decide it would be helpful to hold a hearing to clarify certain issues.

“Surely I’m entitled to my day in court, to get a fair hearing?”

We deal with complaints differently from the courts and our procedures are less extensive and formal.  We generally decide complaints on the basis of the paperwork that the consumer  and the Member send us.  We do not take evidence on oath, summon witnesses or cross-examine the parties.

Our procedures do not involve giving either side the right to have a hearing as a matter of course, inspect all the papers personally, or interrogate the other side.

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Where are hearings held?

If an ombudsman decides that a hearing is needed, we will arrange a date that is convenient to both sides.  Hearings are usually held at our office in Warrington, unless there are very good reasons to hold one somewhere else.

Any request for an alternative location should be sent to us in writing, with reasons for the request.  We would consider holding a hearing elsewhere if, for example, someone who had to attend faced significant travel difficulties getting to our office because of ill-health.

What happens at a hearing?

At a hearing the ombudsman will normally:

•           Summarise the complaint and the issue for consideration;
•           Give each side the opportunity to put forward their views and comments;
•           Ask any questions which he or she considers relevant; and
•           Explore any further issues which he or she thinks may need clarifying.

Each side in turn will have the opportunity to put questions (through the ombudsman) to the other side.  The ombudsman may then ask more questions, before inviting both sides to make any closing comments.

The purpose of a hearing is for the ombudsman to get a clearer picture of the events that led to the complaint.  A hearing is not intended for those involved in a dispute to interrogate each other or just get their feelings off their chest.

Since hearings are informal neither side needs to be represented legally and this is not something we want to encourage.  If the Member wants its lawyers to attend, then in the interests of fairness, we will invite it to consider paying for the consumer to have legal representation as well.  If only one side is represented legally, the ombudsman will ensure the hearing remains fair to both sides.

The hearing will be recorded and a copy of the recording will be available on request.  We do not usually produce written transcripts, so we may need to make a small charge if either side asks for one.

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What happens after a hearing?

After the hearing, the ombudsman will review the complaint file again and consider all the available evidence.  If the ombudsman decides that further evidence is still needed from one or both sides, he or she will usually request this in writing.  Otherwise the ombudsman will issue the final decision on the complaint and sent it to both sides at the same time.

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This quick guide gives general information only.  It is not a definitive statement of the law, our approach or our procedure.