Isle of Man OFT consultation response on Estate Agents. Ombudsman Services Consultation response to the Isle of Man OFT proposals

Transcription

1 Isle of Man OFT consultation response on Estate Agents Ombudsman Services Consultation response to the Isle of Man OFT proposals

2 Consultation response to the Isle of Man s Office of Fair Trading (OFT) consultation on Estate Agents Response of Ombudsman Service Ltd (Ombudsman Services) Summary The Ombudsman Service Ltd is a company limited by guarantee (not-for-profit) that provides ombudsman services for the energy, telecommunications and property sectors, by appointment or approval from the relevant regulators. We provide dispute resolution and redress to domestic consumers and micro-businesses. Ombudsman Services supports the view that those conducting business as an estate agent should be members of an appropriate redress scheme to resolve disputes with consumers. If the Office of Fair Trading (OFT) does propose that estate agents should be members of an appropriate redress scheme to resolve disputes with consumers, the scheme should be independent, open, transparent and accountable. The scheme s governance and operational structures should separate those under jurisdiction and who fund the service, from the operation of the alternative dispute resolution (ADR) provider and the adjudications it makes. The scheme should also be impartial. An ombudsman does not take sides and must be able to demonstrate their impartiality and independence from complainants. In the case of the Ombudsman Services, this is achieved through rigorous processes, evidence-based and clearly reasoned conclusions and consistency of recommendations. 2

3 1. Ombudsman Services competence 1. 1 The Ombudsman Service Ltd is a company limited by guarantee (not-for-profit) that provides ombudsman services for the energy, telecommunications and property sectors, by appointment or approval from the relevant regulators. We provide dispute resolution and redress to domestic consumers and micro-businesses. 1.2 Established in 2002, Ombudsman Services now has over 8,500 participating companies and last year sent out over 20,300 complaint forms. The company employs over 170 people and has a turnover in the region of 6.4 million. 1.3 Ombudsman Services is appointed by Ofcom and Ofgem to be the redress scheme for the communications and energy sectors respectively. In the energy sector we have recently taken on the responsibility for complaints about feed-in tariffs, in addition to our existing role providing the alternative dispute resolution scheme for both energy suppliers and networks. The redress service we provide in property developed from appointment by the Royal Institution of Chartered Surveyors, followed by approval from the UK Office of Fair Trading to provide alternative dispute resolution services for estate agents. 1.4 The most recent sector we provide alternative dispute resolution for is copyright licensing. With our sustainable funding model, independence and considerable experience we have the capacity to undertake further work. 1.5 To help level the playing field between consumers and companies, we have a contact centre which provides information and helps those who have difficulty in making a complaint. Ombudsman Services achieves proportionality by providing alternative dispute resolution through different processes, from informal resolution and telephone negotiation to in-depth investigation. Ombudsman Services decisions are enforceable through the courts. 3

4 1.6 Ombudsman Services complaints resolution service is free to consumers and paid for by the participating companies under our jurisdiction by a combination of subscription and case fee. While Ombudsman Services discusses our annual budget and business plan with the sector participants, the participating companies do not and should not exercise financial control over the company. Ombudsman Services governance ensures that we are entirely independent from the companies that fall under our jurisdiction. The more complaints there are about a company, the more the company pays, thus ensuring an incentive for the company to improve their customer service. 2. Ombudsman Services response 2.1 Ombudsman Services wishes to comment on question E6 only. We support the view that those conductin business as an estate agent should be members of an appropriate redress scheme to resolve disputes with consumers. 2.2 Ombudsman Services believes that any alternative dispute resolution scheme provided is in line with the British and Irish Ombudsman Association s guidelines, which are: Independence Effective Open and transparent Accountable Operate with integrity Clarity of purpose Impartiality 2.3 The governance and operational structures need to separate those under jurisdiction and who fund the service, from the operation of the alternative dispute resolution provider and the adjudications it makes. Independence of the scheme should also be supported by the appointment and periodic review and re-approval by the regulator. 4

5 2.4 Impartiality is not just about independence from the bodies under jurisdiction. An ombudsman does not take sides and must be able to demonstrate impartiality and independence from complainants. In the case of Ombudsman Services, this is achieved through rigorous processes, evidence-based and clearly reasoned conclusions and consistency of recommendations. Participating companies have no influence over how the organisation is run. Accessibility 2.5 Consumers should continue to be advised of their right to take their complaint to ADR by estate agents via: Information on their invoices or bills In correspondence on complaints In the terms and conditions and on their websites By the issuing of a deadlock letter when the company accepts that they are unable to resolve the matter and refers the complainant to the ombudsman. 2.6 Consumer advocacy and advice organisations, as well as the regulators, continue to have an important role to play in signposting our service to potential complainants. 2.7 Awareness must be coupled with accessibility: the service should continue to be free to the consumer, make provision for those who have language difficulties or have specific needs, have a range of ways by which the complainant can interact with the scheme and use plain, jargon-free language in information and reports. In the case of Ombudsman Services; (a) Technology has a key role to play in raising the awareness of consumers, making it easier for them to engage with the ombudsman and making the process more time and cost-efficient and transparent. In April this year, Ombudsman Services launched a new website through which complaints can be made. This will be further developed to allow complainants and companies to track complaints and view progress. 5

6 (b) The website also gives details of what we can and cannot do, information on how to complain, details of our process and timescales and what action we might take to put things right. (c) For those who do not use the internet, we supply leaflets about our scheme. These are written in plain English and are available in other languages and formats on request. Our enquiry officers are trained in collecting all the information necessary by telephone to capture the key elements of a complaint. (d) We provide translation services and support for those who are sight or hearing impaired. The process 2.8 We recommend that the Isle of Man OFT supports the use of the current ADR process which includes a wide range of channels (telephone, , online, letter, fax) for customers to submit complaints, help in completing the forms and articulating their problem and help to navigate the process. On receipt of this signed form Ombudsman Services then contacts the service provider to request the relevant case-file of information held about the complaint. 2.9 The ADR process we follow includes a report, decision and Ombudsman s final decision stages. There is also an appeal stage as well as a final review by the ombudsman In the first instance, we would make every attempt to resolve any complaint informally to the satisfaction of both parties. Only where this cannot be achieved or the case is complex is it then referred on for further investigation. Each party can consider the report and the recommendations and decide whether to request a review on the basis that either there is an error in the report or its recommendations, or new evidence has become available If both parties accept at the first or second stages, then that becomes the final decision, which must be implemented within 28 days. If the complainant declines the 6

7 Ombudsman s third stage final decision, or fails to respond, then the decision lapses and is not binding. Redress 2.12 Any award that is made should be proportionate and place the complainant in a position as if nothing had gone wrong. The OFT may also wish to consider allowing an element of the award that covers the time, trouble and inconvenience the complainant has suffered To continue to operate effectively, arrangements should be in place which allows the operator of the scheme to be able to pursue every provider within the scheme and make appropriate recommendations for redress. Such decisions when accepted by the complainant would then need to be able to be enforced through the courts. The ADR provider is also able to report on systemic failures to the regulatory body and where appropriate suggest potential solutions. Other considerations 2.14 From Ombudsman Services extensive experience in delivering redress for a range of sectors including property, we consider that any redress scheme that may be adopted can be strengthened if the following elements are included: (a) The OFT may wish to consider requiring that there should be a single ADR scheme for the sector. This would ensure that there is no duplication between the different elements with regulatory approval and accountability, the service providers are unable to use their power of patronage to undermine the independence of the ombudsman by transferring to the alternative scheme and it would avoid the potential confusion in the mind of the consumer on who to contact when they have a dispute; (b) Clear advice should be provided at the outset of the complaint on what the alternative dispute resolution scheme can and cannot deal with; (c) Clarity of the process and timescales; Ombudsman Services works to a series of Key Performance Indicators set by the appropriate regulator and we aim to resolve complaints within six weeks; in the overwhelming majority of cases this indicator is met; 7

8 (d) A guide to the level of potential awards in order to manage complainants expectations; (e) Provision of an effective and efficient front-of-house contact centre/enquiries service which is able to collect relevant information effectively and efficiently and/or to re-direct complaints that cannot be dealt with to an appropriate resource; (f) Consistent, robust decisions that, when accepted by complainants, are binding on the service provider Ombudsman Services has considerable experience in the field of dispute resolution. We would be happy to provide clarification on any point in this evidence or if there is any other way we can help, please contact me. Chief Ombudsman 16 April