Complaint re: structural survey, potential referral to Property Ombudsman, confusing response!

Strummer22

Hi,

We have submitted a complaint to our surveyor in line with their complaints procedure. In brief, our complaint is that the structural survey we paid for prior to buying our property missed several structural defects. Most of these came to light after completion when we were seeking quotes to do the (relatively minor) remedial works recommended by the surveyor. The companies we requested quotes from were able to identify the significant structural defects from visual inspection of areas that were accessible to the original surveyor. It is a crucial point that the remedial works recommended in the survey are not possible because of these significant structural defects. 

The nature of the defects isn't really relevant to this thread, safe to say the remedial costs are tens of thousands and had the report identified these we would have sought a significant reduction in purchase price or have pulled out of the purchase entirely. 

We submitted a complaint in line with their complaints procedure. We listed the structural defects that have come to light since we moved in, including description, photos, and names of the firms who were able to identify defects via visual inspection. The response is that "your correspondence suggests there is a potential monetary claim. As this is not an issue concerning the professional conduct of an individual, we cannot proceed in accordance with our company's Rules of Conduct procedures." The matter was passed to their professional indemnity insurers. 

More than 6 weeks later we've not heard anything. In following this up, the company has said they chased the insurer but not heard anything. They also said that the Property Ombudsman arbitration is not available, saying "As stated in my last correspondence, this matter relates to a potential monetary claim and not the conduct of an individual, therefore, the internal investigation procedure ceased when the matter was forwarded to our Professional Indemnity insurers."

Does this seem correct? Surely it does relate to the professional conduct of an individual, namely the due care and attention the surveyor should have used when completing the structural survey? Should we call the ombudsman to confirm whether the company's response is in line with their understanding?

user1977

I don't know the details in relation to surveyors, but generally the professions distinguish between professional misconduct (e.g. your solicitor not advising you of a conflict of interest, or your GP chatting to his mates in the pub about your embarrassing illness), inadequate service (e.g. simply failing to do the work in a reasonable time frame), and professional negligence (giving you wrong advice in the course of their work). This sounds like a negligence claim - in which case the ombudsman might be an inappropriate way of pursuing it.

Strummer22

Okay - if negligence rather than misconduct, does that preclude it being arbitrated by the ombudsman? 

Here's a relevant page from the ombudsman's website: https://www.tpos.co.uk/if-you-receive-a-complaint. It certainly does not seem to exclude negligence. 

Furthermore, under their case studies, the ombudsman made a decision where a surveyor had missed woodworm: https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/something-in-the-woodwork (in that case the complaint was not upheld)

Section62

Strummer22 said:

The nature of the defects isn't really relevant to this thread, safe to say the remedial costs are tens of thousands and had the report identified these we would have sought a significant reduction in purchase price or have pulled out of the purchase entirely. 

They could be, depending on the nature of the defects.

E.g. structural defects could change by a significant amount in the time period between a survey and completion.  What might have been a minor crack when noted by a surveyor could become a significant structural defect within a few months.

If it is a question of professional competence, or negligence, then the context will matter.

Strummer22

Section62 said:

Strummer22 said:

The nature of the defects isn't really relevant to this thread, safe to say the remedial costs are tens of thousands and had the report identified these we would have sought a significant reduction in purchase price or have pulled out of the purchase entirely. 

They could be, depending on the nature of the defects.

E.g. structural defects could change by a significant amount in the time period between a survey and completion.  What might have been a minor crack when noted by a surveyor could become a significant structural defect within a few months.

If it is a question of professional competence, or negligence, then the context will matter.

The nature of the defects did not change by a significant amount. They relate to the construction methods, not deterioration over time.

K_S

Strummer22 said:

Okay - if negligence rather than misconduct, does that preclude it being arbitrated by the ombudsman? 

Here's a relevant page from the ombudsman's website: https://www.tpos.co.uk/if-you-receive-a-complaint. It certainly does not seem to exclude negligence. 

Furthermore, under their case studies, the ombudsman made a decision where a surveyor had missed woodworm: https://www.tpos.co.uk/news-media-and-press-releases/case-studies/item/something-in-the-woodwork (in that case the complaint was not upheld)

@Strummer22 Afaik, surveyors aren't required to be members of TPOS (or another arbitration scheme) but they can sign up to it.

If the firm in question is indeed a member of TPOS (should be evident on the website or letterhead, or checked on the TPOS website here https://www.tpos.co.uk/find-a-member), then as far as I can tell you should be able to escalate it.

If it's been 8 weeks since you first complained to the firm, you can now escalate it to TPOS and don't need the firm's permission or go-ahead to do so.

Unless I'm missing something obvious, I don't think there's anything for you to lose by doing so. 

Strummer22

K_S said:

If the firm in question is indeed a member of TPOS (should be evident on the website or letterhead, or checked on the TPOS website here https://www.tpos.co.uk/find-a-member), then as far as I can tell you should be able to escalate it.

If it's been 8 weeks since you first complained to the firm, you can now escalate it to TPOS and don't need the firm's permission or go-ahead to do so.

Unless I'm missing something obvious, I don't think there's anything for you to lose by doing so. 

Yes we checked this first! They are a member of TPOS. It's not been 8 weeks yet but it will be soon. I will see if anyone else posts with something definitive to the contrary, but if not will take your advice. I would probably call TPOS first as well, but I agree we don't need the firm's permission. As a courtesy I'd let them know that we disagree and are going to the ombudsman. 

eddddy

Strummer22 said:

Yes we checked this first! They are a member of TPOS. It's not been 8 weeks yet but it will be soon. I will see if anyone else posts with something definitive to the contrary, but if not will take your advice. I would probably call TPOS first as well, but I agree we don't need the firm's permission. As a courtesy I'd let them know that we disagree and are going to the ombudsman. 

As far as I can tell - TPOS does not have a Code Of Practice for surveyors (like it does for property agents).

Instead, TPOS provides an 'Alternative Dispute Resolution' service for RICS surveyors who sign up with TPOS.

(See: https://www.tpos.co.uk/join-the-scheme/online-application/property-surveyors-property-professionals)


So as I understand it, TPOS will attempt to resolve complaints by investigating if the surveyor has broken RICS 'rules'. The relevant 'rules' are probably the ones in the RICS Practice Notes - like the "RICS Building Survey - practice note".

So maybe read through that practice note to identify the rules the surveyor has broken... 

https://www.rics.org/globalassets/rics-website/media/upholding-professional-standards/sector-standards/building-surveying/building-survey-practice-note-1st-edition-rics.pdf 

canaldumidi

Surely the issue here is whether this is

a) a complaint against the surveyor, eg negligence, professional misconduct etc which might result in a wrap over the knuckles, or being sruck off (do surveyors get 'struck off' like solicitors?) etc, or

b) a claim for financial compensation (which the company's insurers might pay, or dispute)

Have you actually put in a claim for a specific amount, backed up with reputable quotations for the work?

Strummer22

We have listed the issued but not obtained full quotes for rectifying them all. Some of the companies we had in said they wouldn't quote as they didn't have the expertise to fix!

I expected the process to have a bit of back and forth, e.g. they may request to send an independent 3rd party to verify our claims. And if asked, we would seek quotes for the work. But as everyone knows, moving house is stressful and we just had a baby. There's only so much we have time to do! 

eddddy

The goal is financial damages.

• In order to succeed with a claim for financial damages, you have to show negligence or breach of contract - which has resulted in a financial loss.

• The contract almost certainly says that the surveyor will follow RICS rules - so failing to follow RICS rules would be a breach of contract. 

• The RICS also suggest that a surveyor failing to follow their rules is negligent - so the rules and negligence are closely interrelated

• So if the surveyor breached RICS rules and it resulted in a loss for the OP - that's a basis for claiming damages

If the surveyor accepts that they have been negligent, or breached the contract, discussions about the level of damages / compensation can follow.