What will the Scheme do?

The OEA will look into your complaints to see if we can resolve your dispute in full and final settlement.

How will we do it?

Should we be able to take on your complaints, we will pass the case to The Dispute Service (TDS) and advise you how you can make contact with them.

TDS is an independent body which specialises in dealing with lettings and property management disputes.

Where TDS supports your case, their Independent Case Examiner (ICE) will make recommendations regarding the Letting Agent’s procedures; he may also consider an appropriate award of financial compensation.

Any award that the TDS ICE makes in your favour is to compensate you for any disadvantage you may have suffered and that we feel you deserve in your particular case. It is not to punish the Agent. The OEA has no remit to impose punitive fines on erring Letting Agents. Neither the OEA nor the TDS is the Regulator of the profession of Letting Agency.

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

What cases can and cannot be dealt with by the OEA?

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

Please note that the Ombudsman can only consider complaints against Letting Agents who are members of the OEA Scheme. He has no jurisdiction over those Agents who have not joined the Scheme - even if they are associated with that Letting Agency.

What happens when you receive my Complaints Form?

We send a copy (and any supporting papers) to the Letting Agent - and ask for his version of events (and any supporting papers) to be sent to us. Together, this will then become an OEA case - which we will then send to TDS and ask the ICE to examine the case on behalf of the OEA.

Only in a few instances will it be necessary for someone from TDS 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 ICE for his Proposed Decision. That Proposed Decision may be to support your complaint in whole or in part; not to support your complaint at all; or to propose a settlement.

What if the Agent has made 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 the OEA.

The ICE 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 need to provide?

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

The ICE 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, with the other party (tenant or landlord), 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 ICE 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 ICE is unlikely to support your version of events. However, where the Agent is unable to provide documentary evidence to refute your allegation (where the ICE believes he should be able to) he is likely to support your version of events.

How will the TDS ICE judge my complaints?

In carrying out his Review, the ICE is guided largely by whether the Agent breached the Lettings Code of Practice.

However, unlike in a court of law, the ICE 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 ICE can safely reach 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 TDS ICE 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 TDS ICE 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 TDS ICE’s decision?

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

• You can show that there was a significant error of 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, he will not be able to help you further.

Having considered any representations, the ICE will then make a Final Decision.

Please note that, having made a Final Decision, there is no avenue for further review of your Complaint - for either party - within the Scheme. In other words, you cannot look to anyone else in the Scheme to appeal against the decision. However, if you believe that the TDS process has been unfair to you, you can refer that to the Ombudsman.

If the TDS ICE 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 ICE's or the Ombudsman's role.

The ICE can make awards up to £25,000 on behalf of the OEA Scheme. He will do so if he is convinced that you have suffered:

• Actual, proven financial expense as a direct result of actions or inactions by the Agent. Please note the words 'actual' and 'proven'.
• Financial loss where he is persuaded that, but for the actions of the Agent you WOULD have done something else. This occurs rarely.
• Undue and avoidable stress and inconvenience - over and above what is a stressful and inconvenient process at the best of times.

What happens if I accept the TDS ICE'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 ICE's findings in their entirety.

What if I don't accept the TDS ICE's decision?

You are free to purse your complaint elsewhere. However, please note that the Agent will also be free to pursue any claim he may have against you for any outstanding fees.

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

Please also note that, regardless of the outcome, the Agent will also receive a copy of the Case Review.

Do you publicise Case Reviews?

No - our Case Reviews and the ICE'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. However, anonymised and abridged details of certain cases may appear in the Ombudsman's Annual Report.

What about the Agent's fee?

If you are a landlord, your contract with the Letting Agent usually requires you to pay commission according to the level of service offered. If you refuse to pay, the Letting Agent has a legal right to take you to court.

Some Letting Agents may be prepared to wait until the ICE has considered the case, but they do not have to. Accordingly, we encourage complainants to pay the commission invoice 'without prejudice'.

This will ensure that the Letting Agent will not take any legal action against you in respect of non-payment of the commission fee - but still means that the ICE can give his viewpoint on the matter.